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t CJLJL* Ojul 

RIGHTS AND DUTIES OF 

ORDINARIES 

ACCORDING TO THE CODE AND 
APOSTOLIC FACULTIES 


BY 

THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D. 

Author of “A Commentary on the New Code of Canon Law,” 
“The Pastor According to the New Code,” etc. 


B. HERDER BOOK CO. 

17 SOUTH BROADWAY, ST. LOUIS, MO. 
AND 

68 GREAT RUSSELL ST., LONDON, W. C. 


1924 


M i ^ ^ 
.Ch’B 2. 


CUM PERMISSU SUPERIORUM 

NIHIL OBSTAT 
Sti. Ludovici, die 23. lunii, 1924. 

F. G. Holweck, 

Censor Librorum 


IMPRIMATUR 
Sti. Ludovici, die 24. Junii, 1924. 

Hh Joannes J. Glennon, 
Archiepiscopus 

Sti. Ludovici 


Copyright, 1924, 
by 

B. Herder Book Co. 
All rights reserved 
Printed in U. S. A. 


VAIL-BALLOU PRESS, INC. 

BINGHAMTON AND NEW YORK 


SEP 16 1&4 


©C1A800858 


i §73 

To Commemorate the Foundation 
of 

Conception Abbey O. S. B. 

Half a Century Ago 
This Volume is Fraternally Dedicated 
By The Author 
1923 







FOREWORD 


In this volume are embodied most of the laws and 
rules which concern all those ecclesiastics who go by the 
name of ‘‘Ordinaries,” according to can. 198. It is, 
therefore, intended to be of practical assistance especially 
to the governing prelates endowed with ordinary powers, 
namely, to residential bishops, to vicars either general or 
capitular (administrators), and to religious superiors of 
exempt clerical institutes. We also inserted the Faculties 
which were offered by Formulary III, issued March 17, 
1922, and can be obtained, upon application, from the 
various SS. Congregations and the S. Poenitentiaria. But 
we omitted the Faculties granted by the S. C. de Propa¬ 
ganda Fide, because of the very limited use of the same 
in our country and Great Britain. 

Rev. Fr. Joseph Putzer, of blessed memory, said in the 
Foreword to his most valuable Commcntarium in Facili¬ 
tates Apostolicas: “Vix ullus in hac Republica invenietur 
Sacerdos, vel paululum sacro ministerio functus, qui non 
perspexerit, quanti intersit, facilitates a S. Sede Ordinariis 
ad Dioecesium gubernationem concedi solitas penitus 
nosse.” We believe that this saying still holds to some ex¬ 
tent, although it cannot be denied that the Code has not 
only cleared up many a difficulty, but also widened the 
ordinary power of our Ordinaries, so that what formerly 
required a faculty, in the strict sense, may now be ex¬ 
ercised in virtue of the powers granted by law. This ob¬ 
servation should also be applied to the explanation of the 


VI 


FOREWORD 


Faculties, because these must be understood and inter¬ 
preted in the light of the Code. 

We here wish to express our sincere gratitude to the 
Most Rev. S. G. Messmer, D.D., Archbishop of Mil¬ 
waukee, who has always taken great interest in all our 
publications and has suggested the very thought of 
publishing this volume, which, we hope, will, with God’s 
assistance, accomplish the purpose mentioned above. 

Conception Abbey, Conception, Mo., Feb. 26, 1924 


The Author 


CONTENTS 


PAGE 

Introduction .i 

1. Terminology.j 

2. Different Kinds of Bishops.vii 

3. Election or Appointment of Bishops.x 

4. Consecration of Bishops.xxii 

5. Encomium and Virtues of the Episcopate .... xxiv 

Part I. The Dignity and Qualities of Bishops ... 1 

The Processus Informativus .7 

Qualities Required by Law.8 

Episcopal Consecration.11 

Taking Possession of the Diocese. 12 

Part II. Episcopal Duties and Privileges.15 

Residence ..15 


The Missa Pro Populo . 

Diocesan Report. 

The Visitatio ad Limina . 

The Diocesan Visitation. 

Episcopal Privileges. 

Pontifical Functions .. 

Precedence.'. 

Personal Privileges of Bishops.. . 

Part III. The Legislative and Administrative Power of 
Bishops. 

Section I. Representatives of the Hierarchy . . . 

Patriarchs, Primates, Metropolitans. 

The Pallium. 

Apostolic Vicars and Prefects. 

Apostolic Administrators. 

Exemption. 

Abbots or Prelates Nullius .. _ • 

The Ordinary's Power over Exempt Religious . 

Section II. Legislative Powers of Local Ordinaries . 

1. General Rules with Regard to the Code. 

2. Ecclesiastical and Diocesan Laws. 

Diocesan Synods. 

vii 


*0 00 OO CO QOVJ vi V| 0\cn Oi Cn 4 ^ 4^C*)CoC*»kitOK>i-i 
h VO 00 vj 1-1 (XXn C*> -L" 00 Ln O vC MOOiU 00 Q\U> VO 




























CONTENTS 


PAGl 


viii 


Plenary and Provincial Councils. 97 

3. Customs. 101 

4. Rescripts .. 102 

5. Privileges and Faculties. 110 

Faculties and Indults . . . # . 111 

Use of Privileges and Faculties. JI 4 

Loss of Privileges. ll 7 

6 . Dispensations. 120 


Section III. Administrative Powers . I2 5 

Coadjutors . I2 £ 

The Diocesan Court. I2 ° 

The Vicar-General. I2 9 

Powers of the Vicar-General.I 3 2 

Duty and Cessation of Office of the Vicar-General . 134 

Honorary Rights of the Vicar-General. 135 

The Chancellor and Other Notaries—The Episcopal 

Archives. *3^ 

Functions of Ecclesiastical Notaries.138 

The Diocesan Archives. *39 

Examiners and Pastors Consultors. 143 

Diocesan Chapters—Consultors. *44 

Appointment of Consultors.* 148 

Functions of Consultors. J 50 

Removal of Consultors . . . 153 

Canonicus Theologus and Poenitentiarius . 153 

Vacancy of the Episcopal See. 154 

The Vicar-Capitular or Administrator.156 

Appointment of the Vicar-Capitular.1 57 

Qualities of the Vicar-Capitular ..160 

Rights or Powers of the Vicar-Capitular.161 

Removal from and Cessation of Office.165 


Section IV. Powers Concerning Persons. 166 


Incardination in a Diocese. 

Rural Deans. 

Pastors. 

1. Appointment of Pastors. 

2. Different Kinds of Pastors. 

3. Fulfilment of Pastoral Obligations . . . 

4. Exemption from Parish Organization 

Assistants (or Curates) and Rectors . . . . 

Powers of Ordinaries with Regard to Religious . 

1. As to Establishing Religious Institutes . 

2. Concerning the Government of Non-Exempt 

tutes. 

a) Election. 

b) Canonical Visitation. 

c) Temporal Affairs. 


. . 166 

. . 170 

. . 171 

. . 171 

. . 175 

. . 178 

. . 180 

. . 181 

. . 183 

. 183 

Insti- 

. . 185 

* * ** 

. . 185 

. . 186 
































CONTENTS 


IX 

PAQB 

d) The Sacraments.187 

e) Penalties.192 

f) Confessor and Chaplain.193 

g) The Exploratio Voluntatis .195 

h) Enclosure .196 

i) The Dismissal of Religious.196 

3. Suppression and Exemption.197 

4. Religious Ordinaries.198 

1. Qualities and Obligations.199 

2. Rights or Powers.202 

5. Powers of Ordinaries Concerning Confraternities . 206 

Section V. Powers Concerning Things.213 

Simony.214 

1. Administration of the Sacraments.215 

A. Baptism.216 

B. Confirmation. 218 

C. The Holy Eucharist.226 

1. The Holy Sacrifice of the Mass and its Celebra¬ 

tion .226 

2. Holy Communion.234 

D. The Sacrament of Penance.235 

Reservation of Sins.242 

Indulgences.246 

E. Extreme Unction.249 

F. Holy Orders.250 

Preparation and Requisites.258 

Irregularities and Canonical Impediments . . . 262 

Examination before Ordination.263 

Rite, Time, and Place.263 

Recording of Ordinations.265 

G. The Sacrament of Matrimony.265 

1. Species of Marriage.266 

2. The Law of Marriage.267 

3. Betrothal or Engagement.268 

4. Instructions and Banns.268 

5. Impediments . . 271 

6. Classification of Impediments.273 

7. Dispensation from Impediments by Law . . . 274 

8. The Ordinaries’ Powers of Dispensing by Fac¬ 

ulties .276 

9. Reasons for Dispensations.283 

10. Legitimation of Children.285 

11. Prohibitive Impediments.288 

12. Marriage by Proxy and Through an Interpreter 290 

13. Forms of Celebrating Marriage.290 

14. The Pauline Privilege.295 

15. Revalidation of Marriage.297 

Power of Ordinaries Concerning Sacramentals . . 298 









































X 


CONTENTS 


PAGB 

Section VI. Powers Concerning Sacred Places and 
Times.300 


1. Sacred Places. 

Churches . 

Dedication. 

Church Bells. 

Loss of Consecration. 

Effects of Consecration. 

Desecration. 

Reconciliation. 

Decorum of the Church and Ius Asyli . 

Administration of Churches. 

Repair of Churches. 

Oratories . 

Altars . 

Ecclesiastical Burial. 

2. Holy Seasons—Feast and Fast Days . . . 


300 

302 

303 

306 


307 

308 
308 


309 

310 
310 
313 
313 
315 


320 

324 


Section VII. Divine Worship .326 

Assistance of Catholics at Non-Catholic Services . . 327 
Assistance of Non-Catholics at Catholic Services . . 327 

Worship of the Blessed Sacrament.329 

Exposition of the Blessed Sacrament.3.31 

Sacred Processions.334 

Sacra Supellex . 335 

Vows and Oaths.338 


Section VIII. The Teaching Office .340 

Catechetical Instruction.341 

Preaching.342 

Seminaries .'345 

Schools.348 

Censorship of Books.349 

Prohibition of Books.352 

Faculties.353 

Profession of Faith.357 

Section IX. Ecclesiastical Benefices .358 

Competent Authority and Requisites.360 

Union of Benefices.361 

Rights of Local Ordinaries.363 

Division of Parishes.365 

Bestowal of Benefices.370 

Installation of Beneficiaries.370 

Rights and Duties of Beneficiaries.371 

Resignation.374 

Other Non-Corporate Ecclesiastical Institutions , . . 378 








































CONTENTS 

Section X. Temporal Possessions. 

Begging . 

The Seminary Tax. 

The Cathedraticum. 

Subsidium Caritativmn or Special Contributions . 

Ecclesiastical Pensions. 

Fixing of Taxes. 

Last Wills . 

Administration of Church Property. 

Contracts—Alienation. 

Donations. 

Leasing or Renting. 

Pious Foundations. 


xi 


PAQH 

■ 380 


382 

384 


391 

391 

392 
394 
399 


401 


402 


403 


Part IV. Ecclesiastical Trials 


408 


Section i. Trials in General 


408 


The Competent Judge. 

The Local Ordinary. 

Court of Exempt Religious. 

Necessary Officials. 

Court of Appeal. 

Delegated Judges . 

The Sentence. 

Criminal Trials. 

Criminal Procedure. 

Inquest. 

Conclusion . . 

Matrimonial Trials. 

The Ordinary’s Competency. 

The Defensor Vinculi . 

The Plaintiff. 

Proofs. 

Appeals.. . . . 

Cases Excepted from the Preceding Rules . 
Procedure in Ordination Cases . 


408 

410 

415 

415 

417 

418 

419 

426 

427 

428 


432 

434 

436 

437 

438 

439 


441 


442 

443 


Section II. The Beatification Process . 445 


1. Introduction of the Cause. 445 

2. Inquiry into the Writings of the Servant of God . . 446 

3. The Information Process. 447 

4. Transmission of the Acts to Rome. 449 

5. Per Viam Cultus . 450 

Section III. Mode of Procedure in Various Cases . . 451 

1. General Rules. 45 1 

2. Removal of Irremovable Pastors.45 2 

Invitation to Resign .. 453 

Proceeding of the Ordinary . 455 










































CONTENTS 

PAG* 

3. Removal of Removable Pastors.457 

4. Transfer of Pastors. 459 

5. Procedure against Non-Resident Clerics .... 461 

6. Contra Concubinarios .463 

7. Against Neglectful Pastors.465 

8. Suspension ex Informata Conscientia .466 


Part V. Coercive Powers of Ordinaries 


470 


Section I. Penalties in General 


471 


Superiors with Coercive Powers 
Who Are Subject to Penal Laws 
Remission of Penalties . 
Censures . 

1. Excommunication 

2. Interdict. 

3. Suspension . . . . . 

Procedure for Suspension . 
Vindictive Penalties .... 
Penal Remedies and Penances 


. 472 

• 473 

• 474 

• 475 

• 483 

• 485 

• 485 

• 487 

. 489 

• 489 


Section II. Penalties for Individual Cases .... 490 

I. Excommunications Reserved to the Holy See 

Modo Specialissimo . 491 

II. Excommunications Reserved to the Holy See 

Modo Speciali .491 

III. Excommunications Reserved to the Holy See 

Sitnpliciter .494 

IV. Excommunications Reserved to the Ordinary . 496 

V. Excommunications Reserved to No One (A T emini) 497 

VI. Interdicts. 498 

VII. Suspensions. 499 

VIII. Degradation. 500 

IX. Deposition. 501 

X. Infamia Iuris .502 

XI. Privation of Office or Benefice. 502 

XII. Privation of the Active and Passive Voice . . 504 

XIII. Arbitrary Penalties. 505 


Appendix. Faculties Granted by the Apostolic See . 507 

I. Nature and Extent . .507 

II. Recipients .509 

III. Execution .510 

A. Faculties Granted by the Holy Office.513 

B. Faculties Granted by the S. Congregation of the 

Sacraments .523 

C. Faculties Granted by the S. Congregatio Concilii . 528 

D. Faculties Granted by the S. Congregatio Religio- 

sorum.530 

E. Faculties Granted by the S. Congregatio Ritum . 534 

F. Faculties Granted by the S. Poenitentiaria . . . 538 
































INTRODUCTION 


i. Terminology 

What modern researches have brought to light con¬ 
cerning the various terms with which the office of bishops 
has been honored, may be briefly summed up in these 
statements . 1 

There is no dispute as to the existence of certain offices 
in the primitive Church. Holy Writ amply testifies to 
this fact. The very title “Apostle” presupposes a class 
of men distinguished from those to whom these mes¬ 
sengers were sent. The Acts of the Apostles mention 
another body of men, who were employed in the more or 
less material administration of the first community at 
Jerusalem; to wit, the diaconi, or ministers simply so 
called. Between these two classes of functionaries, how¬ 
ever, there are mentioned in the earliest sources others 
who go by the respective Greek names of iroipeve?, shep¬ 
herds or pastors, liriarKorroL, overseers, superintendents, or 
TrpevpvTtpot, seniors (priests). Were these three terms so 
well determined and understood by the Apostolic Church 
or first Christians that each of them signified a specifically 

i Concerning the modern literature on this subject see Stanis¬ 
laus v. Dunin-Borkowski, S. J., Die neueren Forschungen iiber 
die Anfange des Episkopates, 77- Erganzungsheft zu den Stim- 
men aus Maria Laach, 1900; H. Bruders, S. J., whose work we 
here use in the Italian translation by Prof. Ch. Villa, La Costi - 
tuzione della Chiesa, Firenze, 1906; also D. Bouix, Tractatus 
de Episcopo, 1859* t. I, 4 ff* 

i 


11 


INTRODUCTION 


distinct class of ecclesiastical officers ? Before we answer 
this question we would recall that the Primitive Church 
was favored with many gratuitous gifts (gratiae gratis 
datae), which gradually decreased, or at least ceased to be 
what we might call common among the first believers. 
Of these gifts, ( charismata ), that of prophecy was the 
most important, and appears to have lasted longest (to 
about A. d. 200). Prophecy was intended for the instruc¬ 
tion of others in the sublime truths of the Christian 
religion, for the edification and consolation of the converts. 
The “prophets” were not confined to a limited territory, 
but exercised their office or function wherever they 
chanced to be. This extraordinary gift gave them, be¬ 
sides, a certain pre-eminence even over the prelates who 
cared for the whole flock, wherein the Holy Ghost had 
placed them bishops to rule the Church of God (Acts XX, 
28). Hence, it should cause little surprise that the 
superiors proper of local communities are not as con¬ 
spicuous as we might expect, or that their office appeared 
less distinct and less distinguished than it really was, and 
later became, after the charismatic organizers and mes¬ 
sengers ceased to exist. Furthermore, the fact that 
during the lifetime of the Apostles the latter had a hand in 
the development and administration of communities which 
they had founded, necessarily placed some restraint on the 
exercise of the full power of the resident or local prelates. 

To return, then, to the question stated above, viz., 
what was the distinction between pastores, episcopi, and 
presbyteri, the answer should be : 

a) As to the ttoi/acVcs, or shepherds, the parable which 
the Lord applied to himself (Joh. X, 11) signifies the re¬ 
lation between flock and pastor or leader; in other words, 
it expresses the pastoral duty of the one to whom 


TERMINOLOGY 


iii 

the sheep are entrusted. But as far as bishops are con¬ 
cerned, the term remained one of metaphorical or alle¬ 
gorical significance, and did not assume a technical 
character. 

b) Different was the development of the other two 
words, episcopi and presbyteri, which gradually grew 
into the canonically well determined vocabulary. Epis- 
copus means one who continually gives his attention to 
something entrusted to his care. Thus, in the second 
century b. c., employees of the municipality of Rhodes 
were styled episkopoi, and one employee with a sacred 
character was called episkopos. That the Christians who 
were mostly acquainted with Greek terminology made use 
of this word in its pagan meaning is beyond doubt. 
In this sense it occurs in i Pet. II, 25, where it stands for 
a Christian vested with an office that combines the at¬ 
tributes of shepherd and overseer. After the time of 
St. Ignatius of Antioch, bishops are the representatives 
of the invisible inspector or superintendent, they are the 
acknowledged leaders and magistrates, each one in his own 
residence or place, chiefly in political or commercial cen¬ 
ters. 2 

c) More frequent was the use of the term presbyteroi, 
not only among the Jews, but also the Gentiles. Several 
municipalities of Asia Minor had corporations under the 
name of “presbytikon.” In Egypt, there were fifty pres¬ 
byteri who governed all the affairs of the sacerdotal caste. 
The Jews of the Western Diaspora, with their Plebrew- 
Greek literature and vocabulary, also had their 
presbyteroi, vested with civil and religious power. The 
New Testament mentions the well-known synedrium com¬ 
posed of “highpriests, scribes, and priests/’ The same 

2 See Ignat., Epist. ad Magnes., Ill, 1, 2. 


IV 


INTRODUCTION 


source uses the word presbyteros sometimes only for an 
aged person, as in Luke XV, 25; sometimes for seniors; 
sometimes for the primitice or first converts to the new 
religion, and applies it especially to those who were near 
or around our Lord and His Apostles. From this latter 
use the technical term arose and was applied to a particu¬ 
lar office, distinct from the Jewish as well as pagan priest¬ 
hood. This process, of course, required some time. At 
first not only bishops, but even Apostles, had been given 
the name presbyteroi . 3 After about the year 113, how¬ 
ever, the specifically distinct term, in the sense in which it 
is now used, was undoubtedly formed and firmly settled 
among the Christians. After the Apostles were no more, 
there were in the Church bishops, priests, and deacons. 
Their office, indeed, is of divine origin, but the terminol¬ 
ogy was not fixed until after 113. Therefore it has truly 
been said that an unbiased student of the primitive 
sources will find that only in the letters of St. Ignatius of 
Antioch, or about the year 113, a well-defined gradation 
of diaconoi, presbyteroi, and episcopoi may be discovered. 4 
It is certain, says Duchesne, that the priests or bishops 
who directed a local community, recognized the apostles, 
of whatever order, as possessed of superior authority, and 
as the founders and spiritual masters not only of an 
isolated Christian body, but either of all Christian bodies 
generally, or of those of particular regions. As these 
great leaders gradually passed away, a definite hierarchy 
made its appearance. In each town, all the Christians 
and their directors ( presbyteri , episcopi) were ranged 
under a chief bishop, to whom this name of bishop was 
shortly after exclusively applied. Around him, and con- 

3 See Acts XI, 30; XV, 2, 4, 6, 22, 23; XVI, 4; XXI, 18. 

4 See v. Dunin-Borkowski, /. c., page 2. 


TERMINOLOGY 


v 


Btituting with him a college, were his priest-counsellors; 
beneath them the deacons, who in their functions, already 
become varied and numerous, were not long after assisted 
by a whole staff of inferior ministers. 5 

This, however, must not be understood as if the episco¬ 
pate were a mere human development. The terminology 
is one thing and the office itself is another, though perhaps 
not so clearly discernible or distinct from a similar func¬ 
tion. We know from the Acts that bishops were ap¬ 
pointed by the Apostles as presidents and superiors of the 
faithful or a portion thereof; that they were chosen 
by the cooperation of the flock, but sent and invested 
only by the Apostles, i. e., by divine interposition or com¬ 
mand ; that this initiation into the sacred office consisted 
in the laying on of hands by the Apostles. 6 The Pastoral 
Letters of St. Paul outline the rights and duties of these 
superintendents. One of these consists precisely in pro¬ 
viding things that were wanting and in ordaining pres- 
byteri in every city (Tit. I, 5). 

Besides the usual name episcopus, the Latin terminology 
has formed other words, and that from ancient times. 
Thus sacerdos occurs in the writings of the earliest au¬ 
thors. St. Gregory the Great calls John the Faster, Pa¬ 
triarch of Constantinople, his consacerdos, and addresses 
bishops of various dioceses as sacerdotes of such a diocese 
or church. 7 But towards the eleventh century this usage 

5 Christian Worship, translated by M. L. McClure, London, 
1903, page 8. 

e See Acts I, 20; XX, 28; 1 Tim. IV, 14; 2 Tim. I, 6; Tit. 
I, 5-14, etc. 

7 See Gregorii I. Papae Registrum Epistolarum, I, 154 and 
passim (Monumenta Germaniae Historica, Epp. T. II), ed. Ewald- 
Hartmann, 1899. 


VI 


INTRODUCTION 


gradually disappears, 8 and other attributes become more 
prominent. Thus we have index ordinarius, which means 
not merely a judge, but one endowed with ordinary juris¬ 
diction. 9 The Decretals of Gregory IX mention a dioe- 
cesanns without any further appellative. The explana¬ 
tion is indicated: their judiciary or coercive power was 
limited to their respective territory. 10 

Finally, there are two well-known Latin terms: prae- 
sules and praelati. The former is said to insinuate the 
right of presiding over synods. 11 Prelate, from prceferre, 
alludes to their prominent position above the whole people 
by reason of their divine character and power. 12 But the 
term “prelate” is also applied to superiors of regulars by 
the same Decretals. 13 

The Greek terms, antistes, already known to the 
Decretals, 14 has become, we might say, a canonical term, 
although it was not frequent in ancient times. For the 
older Greek designations for bishops were npoardraL, or 
superiors, TrporjyovfievoL, 7 rpoKa 6 r]p.evoi, or presidents. An¬ 
tistes means a person of prominence, or, as Barbosa 
says, 15 one who opposes heresy, as a shepherd resists the 
wolf. 

8 See c. i, C. 16, q. 7 (Greg. VII), where a neat distinction 
between sacerdotcs and episcopi is apparent. 

9 Compare X, I, 31 de officio iudicis ordinarii; also c. 16, C. 16, 
q. 7 (c. 1, Synodi Toletani IX, a . d . 655): denuntiare episcopo 
vel indici; also c. 7. 6°, I, 16. 

10 See c. 25. X, III, 38; c. 2, 6°, I, 2. 

11 See c. 11, X, I, 11; Barbosa, De Officio et Potestate Episcopi, 
Lugduni 1665, P. I, tit. 11, cap. 2, n. 5; v. Scherer, Handbuch d. 
K.-R., Graz, 1886, 1, 557. 

12 Barbosa, i.e.: “Praelati cum praesint universo populo sibi 
commisso ratione divinorum et peccati.” 

13 See c. 7, X, I, 31. 

14 See c. 11, X, I, 11. 

15 /. c., n. 6. 


DIFFERENT KINDS OF BISHOPS 


vii 


2. Different Kinds of Bishops 

As there were non-resident prelates besides the resident 
prelates in the Apostolic age, so we learn from synodal 
acts of the third and fourth century of bishops who go 
by the name of “bishops of the neighboring country.” 
Later on they were simply called chorepiscopi™ These, 
according to can. 14 of the synod of Neo-Csesarea (314), 
were types of the seventy disciples. From the material 
at hand it is rather difficult to circumscribe the nature 
and extent of their power. However, can. 10 of the 
synod of Antioch (341) supposes that at least some of 
them had received episcopal consecration. The same 
canon permits them to ordain lectors, subdeacons, and 
exorcists, but not deacons or priests, and allows them to 
issue litterae commendatitiae . 17 The synod of Laodicea 
(between 343 and 381) forbade the existence of such 
bishops in villages and country places (can. 57). How¬ 
ever, this enactment certainly did not take effect every¬ 
where; for we hear of chorepiscopi in Africa in the fifth 
century, 18 and in the Frankish kingdom three centuries 
later, although in this last-named country their power ap¬ 
pears to be entirely dependent on the good pleasure and 
need of the local Ordinary. 19 In the tenth century, owing 
chiefly to the influence of Pseudo-Isidore, the chorepiscopi 
commence to disappear and their office is merged with that 
of the archdeacons, although their name still remains un- 

16 Syn. Ant.; see Hardouin, C. C., I, 197; Ancyr., can. 13; see 
Hefele, Concilicn-Gcsch., I, 199 f. 

17 Hefele, l. c., I, 218, 496 f.; see c. 5, Dist. 80. 

Id., l c., I, 74 & 

19 Rhabanus Maurus, Tract, dc Chorepiscopis, Migne, P. L., 
10 7, 1195-1206. 


INTRODUCTION 


viii 

til the twelfth century, and is mentioned in Ireland even 
in the century following. 20 

However, the place of the former chorepiscopi was 
frequently taken by the titular or auxiliary bishops, who 
first appear in Spain, in the tenth century, and then else¬ 
where. At the time of the Saracen invasions many bish¬ 
ops who had been expelled from their sees sought refuge 
in the dioceses of their colleagues who had been more 
fortunate than themselves. These refugees then lent a 
helping hand to their kind hosts. After the demise of 
these coadjutors, successors were appointed, in the hope 
that the respective dioceses would soon be rescued from 
the power of the infidels. 21 But it was only towards the 
end of the crusader period that such appointments became 
regular, the experience with the chorepiscopi being still 
fresh in memory. For the latter, against the letter and 
spirit of the law which permitted only one bishop in 
each diocese, had gradually usurped a power that would 
vie with that of the Ordinary. Yet, in spite of the fact 
that these bishops-coadjutors sometimes turned into wan¬ 
dering prelates, 22 their usefulness as cooperators ren¬ 
dered the institution permanent. Thus they were, by 
some hctio iuris, ordained and assigned to a see occupied 
by the Moslems, or in partibus infidclium, and their ap¬ 
pointment and consecration, like that of other bishops, 
was reserved to the Holy See. Pope Leo XIII removed 
the former qualification entirely, so that they are now 
simply called episcopi titular es or non-residential 
bishops. 23 

20 See v. Scherer, Handbuch des Kirchenrechts, 1886, Vol. I, 
597 f- 

21 Funk, Manual of Church History, 1913, I, 364. 

22 See c. 5, Clem. I, 3; v. Scherer, l. c., I, 555. 

?*Litt. encycl., March 3, 1882 ( Coll Prop . Fide, 1907, Vol. II, 
page 157, n, 1565), 


DIFFERENT KINDS OF BISHOPS 


IX 


Another kind of bishops are the coadjutors, or vicars, 
or dispensators, given either permanently or temporarily 
to disabled bishops. Thus Narcissus of Jerusalem, when 
116 years old, received Alexander as his successor. 24 St. 
Augustine was associated with Valerius of Hippo, al¬ 
though the latter was still incolumis , 25 but suffering from 
a defect of speech. The appointment of such bishops- 
coadjutors was, in earlier centuries, made by synods or 
by the Pope, 26 to whom this right was reserved by Boni¬ 
face VIII. 27 

In the Irish Penitential Books, and in documents of 
monastic bodies, we read of so-called monastery-bishops, 
who were also known in French and German abbeys. 
Their power was rather limited and depended, as to ju¬ 
risdiction, on the good pleasure of the governing abbot. 
They were, however, allowed to ordain members of their 
respective monasteries, to bless the chrism, and, in case 
of danger or in the absence of the Ordinary, to administer 
Confirmation. 28 

From these must be distinguished the abbates or pree- 
lati nullius. They belong to the class of so-called pree- 
lati secundarii, because they are said to possess jurisdic¬ 
tion, not by virtue of their office, but by delegation. Their 
power is closely connected with exemption, out of which 
their jurisdiction in the external forum really grew. 
They are mentioned in the Decretals. But it must be 
noted that exemption in their case really means territorial 
separation, namely, separation from the diocesan organi¬ 
zation, so that they rule over land and people to the ex- 

24 Euseb., Hist. Eccl., IV, n. 

25 See c. 12, C. 7, q. i. 

26 See c. 3, C. 8, q. i. 

27 See c. un., 6°, III, 5. 

28 See v. Scherer, 7 . c., I, 554. 


X 


INTRODUCTION 


elusion of the local Ordinary, who otherwise would be 
entitled to govern that strip of land or territory and the 
subjects living therein. Therefore, they are styled pre¬ 
lates nullius, because they belong to no diocese. Abbots 
of religious communities—more accurately, of monastic 
bodies who have a separate territory under them— 
are called abbates nullius, while the provosts of secular 
chapters or even provosts of canons regular who rule 
over a separate territory, are called prcelati nullius . 29 
These, as a rule, do not receive episcopal consecration, but 
only a blessing. 


3. Election or Appointments of Bishops 

The act by which one was chosen to an ecclesiastical 
office was called x eL P OTOV ' La > a term which was later re¬ 
served to signify the technical act of consecration or lay¬ 
ing on of hands with prayer. Originally, however, 
xetporoveiv might have indicated the act of voting or choos¬ 
ing. 30 The Apostles and brethren elected Matthias by 
casting lots ; 31 but later on the same Apostles simply ap¬ 
pointed one of their own choice and told the disciples to 
do the same. 32 Some decades later, according to the tes¬ 
timony of Clement of Rome, the successors of the Apos¬ 
tles, the so-called viri eximii, constituted bishops with 
the consent of the entire assembly or church ( tf consen - 

29 See Kirchenlexicon, 2nd ed., s. v. Pralatur,” Vol. X, 263 
ff.—The older Ordines Romani, too, applied the term pralatus to 
bishops and abbots; cfr. Phillips, Kirchenrecht, 1864, Vol. VI, 
305 f- 

80 Bruders-Villa, /. c., pp. 12 ff. 

31 Acts I, 15 ff. 

32 Tit. I, s. 


APPOINTMENT OF BISHOPS 


xi 


tiente universa ecclesia”) , 33 The Greek term for con¬ 
sent certainly involves active cooperation; it is the 
complacnit or placuit of Acts XV, 25, and of later 
synodal acts. Whether it only meant giving testimony 
to the fitness of the candidate, is not clearly expressed. 
After the seniors of the Church, i. e., the Apostles and 
their immediate disciples, had passed away, it was quite 
natural that the authority to appoint bishops or resi¬ 
dential prelates should undergo some slight change. 
In other words, the bishops already in existence and, 
to some extent, connected with the vacant sees, took the 
place of the Apostles and the viri eximii.** We find 
the mode of electing bishops pretty well described in the 
well-known letter (67) of St. Cyprian, although even 
this text leaves room for doubt. The salient passage reads 
in English: “For which reason you must diligently ob¬ 
serve and keep the practice delivered from divine tradition 
and Apostolic observance, which is also maintained among 
us, and almost throughout all the provinces; that for the 
proper celebration of ordinations all the neighboring bish¬ 
ops of the same province should assemble with the peo¬ 
ple for whom a prelate is ordained. And the bishop 
should be chosen in the presence of the people, who have 
most fully known the life of each one and have looked into 
the doings of each one as regards his habitual conduct. 
And this also, we see, was done by you in the ordination 
of our colleague Sabinus; so that, by the suffrage of the 
whole brotherhood, and by the sentence of the bishops 
who had assembled in their presence, and who had writ¬ 
ten letters to you concerning him, the episcopate was con¬ 
ferred upon him, and hands were imposed on him in the 

33 Ep. I ad Corinth., cap. 44, n. 3 (Funk, Opp. Patr. Apost., 
1887, page 117). 

34 See Hefele, Concilien-Geschichte, I, 366. 


INTRODUCTION 


xii 

place of Basilides.” 35 It follows from this, as Hefele 
points out, that the neighboring bishops of a province 
assembled to elect a bishop to a vacant see; that the elec¬ 
tion was performed in the presence of the whole diocesan 
flock; that the episcopate was delivered stiff r agio 36 uni¬ 
verse fraternitatis, which certainly involves a vote pro¬ 
posing or naming a candidate, and episcoporum iudicio, 
which may reasonably be taken to mean that the final 
judgment rested with the bishops. 37 However, the peo¬ 
ples’ share in the election of their prelates was grad¬ 
ually curtailed and finally forbidden. Thus the first council 
of Nicaea (325), can. 4, mentions only the bishops of the 
eparchia (province) as allowed to set up (Ka0io-racr0cu) a 
bishop. The synod of Laodicea, can. 12 f., ruled that the 
election of a bishop should be performed by the bishops 
of the province, and that the people should have no right 
in the election of those destined to the priesthood. 38 

The Greek Church had every reason to exclude secular 
intervention in the choice of bishops, Caesaropapism run¬ 
ning high at that time. Therefore the second Council of 
Nicaea (787), and, more emphatically still, the eighth 
General Council at Constantinople (869-870), forbade 
the participation of lay princes and potentates in the elec¬ 
tion of patriarchs, metropolitans, and bishops. 39 

35 See The Ante-Nicene Fathers, by Roberts and Donaldson, 
1899, Vol. V, 371. 

30 Suffragium is derived from sub and frango, a broken piece, 
shard, or potsherd, with which the ancients used to vote in their 

assemblies. 

37 Hefele, Concilien-Gcschichte, I, 367. 

38 Hefele, l. c., I, 365, 733; see also Const. Apost., VIII, cap. 
4; c. 6, Dist. 63; Loening, Geschichte des deutschen Kirchen- 
rcchts, 1878, I, 108 f.; Phillips-Vering, Kirchenrecht, 1889, Vol. 
VIII, P. I, passim. 

39 Can. 22 of the Vlllth Council in cc. 1 and 2, Dist. 63. 


APPOINTMENT OF BISHOPS 


xiii 

The Western Church, which interpreted these canons 
as concerning consecration only, followed the old custom, 
which allowed the clergy and the people to designate a 
candidate with the consent of the metropolitan. 40 The 
mode of proceeding was rather democratic, somewhat like 
that of a Swiss Landsgemeinde or assembly of the whole 
diocese. The inhabitants, not only of the episcopal city, 
but of the diocese, the noblemen, the senators, the coun¬ 
try- and townsfolk are sometimes represented, in the acts 
of the Saints, as unanimously choosing their bishop. If 
there were several parties who proposed candidates, they 
deliberated, sometimes quite noisily, until one of the 
candidates had obtained the majority. 41 

The “Most Christian Kings” of the Merovingian dy¬ 
nasty, however, soon perceived that a bishop, on account 
of his dignity, rank, and wealth, could be made a powerful 
asset in shaping the destinies of the realm. Therefore 
they claimed the right of ratifying episcopal elections; 
nay, it has been said with a great deal of truth that no 
one could become a bishop without the royal consent. 42 
On the other hand, provincial councils endeavored to 
curb such unwarranted interference. Thus can. 8 of the 
synod of Paris (557) enacted : No city may have a bishop 
imposed on it, unless he has been freely elected by the 
clergy and the people; he may not be appointed by any 
royal command or otherwise, against the will of the metro¬ 
politan and of the bishops of the province; if any one 
dares to intrude himself into the episcopal office by virtue 
of a royal demand or precept, he may not be received 

40 Synod of Clermont, 535, can. 2; 3rd Synod of Orleans, 538, 
can. 3 (Hefele, C.-G., II, 739 , 753 -) 

41 Vita Germani Antissiod., cap. 9; Vita Eptadii, cap. 6 (Loen- 
ing, 1 . c., II, 175). 

42 Loening, l. c., II, 175. 


XIV 


INTRODUCTION 


by the bishops of the province. 43 The will of the bishops, 
especially of the metropolitans, was rather supple and 
subservient, and as a result the Frankish kings were for 
the most part regular “bishop-makers.” Evil conse¬ 
quently followed, one of which was an extensive and ab¬ 
ject simony, so bitterly complained of by St. Gregory the 
Great in his letters to Brunhildis. 44 Another of the evils 
attendant upon royal “nomination,” mildly styled ratifica¬ 
tion, was that unworthy subjects and not rarely even lay¬ 
men without the canonically required preparations were 
promoted to most responsible positions. Another sad con¬ 
sequence of this caesaropapistic system was that the 
Church of France, practically severed from the center, 
could or would not energetically counteract the absolut- 
istic tendencies of the Frankish kings. 45 It sounds very 
improbable a priori that Charlemagne should have received 
from Adrian I (722-795) the privilege of investing or 
nominating all the metropolitans and bishops of his 
realm, even if two genuine letters of the same Pope 
would rather not assert the independence of episcopal 
election. 46 

In Spain, at first, the common law which permitted the 
election of bishops by clergy and people with the consent 
or ratification of the metropolitan was in vogue. The 
Arian kings did not molest Catholic elections. Even after 
the conversion of the Visigothic nation this mode of elect¬ 
ing bishops remained. However, at the Xllth Synod of 
Toledo, we hear of a “conniventia principum,” and even 

43 See c. 5, Dist. 63. 

44 See Registrum Epp. Gregorii I, ed. Ewald-Hartmann, Ep. 
VIII, 4; XI, 49; Vol. II, 5, 321; Ep. ad Theodericum, XI, 47, 
Vol. II, 319. 

45 Thus Loening, l. c., II, 185 f. 

46 Hefele, /. c., Ill, 579. 


APPOINTMENT OF BISHOPS 


xv 


of the royal election of all bishops. The XHIth Synod of 
Toledo (683) confirmed the enactment of the preceding 
one, granting the kings of Spain almost the same power 
as that exercised by the Frankish rulers. However, the 
method of ratifying or nominating was not always uni¬ 
form. On the contrary, the cathedral chapters gained 
great influence. To this should be added the right 
of the monks to intervene at these elections, a right 
which was formally acknowledged in the Xllth century. 47 
The papal reservations in regard to certain bishoprics 
were not greatly in favor with the Spanish kings. On the 
contrary, the right of nomination, which was somewhat 
later styled iuspatronatus, was fully exercised in the 
Spanish domains, which Pope Adrian VI formally granted 
to his former pupil, Charles V, in 1523. Benedict XIV 
acknowledged the right of nomination in the Concordat 
of Jan. 11, 1753, an d thus it practically remains up to 
our time. 48 

In England a more perfect form of episcopal election 
was introduced by Theodore of Canterbury. Under him 
and his immediate successors the appointment of bishops 
was generally made in the national synods, at which the 
primate presided, and which the deputies of the vacant 
church attended to give their consent. But England, too, 
followed the example of the rulers across the channel. 
‘‘In effect,” says Lingard, “that system was rapidly grow¬ 
ing up in England which began to prevail on the con¬ 
tinent.” 49 Neither were evils absent from the practice 
that prevailed in this country. 

47 Phillips-Vering, K.-R., 1889, Vol. VIII, P. I, page 192.—At 
a synod of Pampelona, in 1023, it was ruled that only monks 
should be elevated to bishoprics; ib. page 189. 

48 Phillips-Vering, l. c., Vol. VIII, 200 ff. 

49 History and Antiquities of the Anglo-Saxon Church, 2nd ed., 


XVI 


INTRODUCTION 


We only need to recall the name investiture quarrel in 
order to realize to what an abyss royal ratification or 
nomination was leading. Of course, it would be unfair 
to blame the secular power entirely for such unfortunate 
conditions; the prelates themselves shared in the responsi¬ 
bility. For, as the treaty of Sutri (nil) and the sub¬ 
sequent remonstrances on the part of the bishops plainly 
show, the interpenetration of things spiritual and tem¬ 
poral cleft fast and thick to the bones of these ecclesi- 
astico-temporal lords. This was precisely the reason why 
the civil rulers, with some semblance of right, claimed a 
share in the appointment of bishops and abbots, who had 
become not only “superintendents” in things pertaining to 
God, but feudal lords, endowed with royal estates or allo¬ 
dial domains, which pointed to secular dependence and 
seemed to demand a visible sign of allegiance, fealty, or at 
least homage— ligium et hominium, as they were called in 
medieval Latin. This practical sign was found in hand¬ 
ing to the nominee at first only the crozier or baculus 
(crook), and later, since the time of Emperor Henry III 
(1039-1056), also the ring—the symbols of jurisdiction 
and union. This mode of investing naturally created a 
false impression,—as if the episcopal power were con¬ 
ferred by the temporal ruler. Hence the acute tension 
between sacerdotium and imperium until the struggle was, 
at least to some extent, settled by the Pactum Calixtinum, 
or Concordat of Worms, in 1122, by which the ancient 
canonical procedure that allowed clergy and people to 

I, 84. In Vol II, 22, he says: “A shadow of the ancient dis¬ 
cipline was preserved: from the pulpit of the cathedral the 
name of the clergyman who had been nominated to the vacant see 
was announced to the congregation; and their acclamation of 
‘Many years may he live’ was assumed as sufficient evidence of 
their assent.” 


APPOINTMENT OF BISHOPS xvii 

elect a candidate in the presence of the emperor or his 
delegates, was restored. 50 Yet even so, the freedom of 
election was often flagrantly violated by the higher and 
lower nobility. Besides, the cathedral chapters, being 
mostly composed of men of noble extraction, succeeded 
in eliminating the rest of the diocesan, country and city 
clergy from the election. Thus the canons of the 
cathedral were finally acknowledged by canon law as 
the legitimate electors, to the exclusion of other clergy¬ 
men and laymen. The popes, on their part, curtailed the 
acquired right and influence of the metropolitans as to 
confirmation or ratification or examination of the candi¬ 
dates, and reserved it to themselves. The bishops-elect 
had, therefore, to ask for confirmation from Rome, either 
in person or by proxy. The reason for this reserva¬ 
tion is stated in a decretal of Gregory X which was en¬ 
acted as a universal law at the Ilnd Council of Lyons 
(1274) : blind avarice and wicked, damnable ambition 
(avaritce ccccitas ct damnandce ambitionis improbitas .) 51 

Notwithstanding this formal acknowledgment of the 
elective right of the cathedral chapters—which after all 
was the best and most practical method—the popes, partly 
by reservations, partly by indults, caused this right either 
to become dormant or ineffective. Thus it came to 
pass that royal powers, based on such papal grants, either 
real or fanciful, assumed the right of nomination to some 
bishoprics, as in France and Austria, or the right of 
presentation to all vacant sees, as in Spain, Sicily, and 
Portugal. In some countries, however, like Switzerland 
and those provinces of Germany which were under 
Protestant rulers, the cathedral chapters continued to 

50 See c. 35, Dist. 63. 

51 See cc. 42, 56, X, I, 6; cc. 5, 6, 6°, I, 6. 


INTRODUCTION 


xviii 

exercise their right more or less freely, although even 
these elective bodies had to suffer from undue inter¬ 
ference. Thus some governments in these countries 
claimed the right either of proposing a list of candidates 
from among whom the canons might elect, or of striking 
from the proposed list personae non gratae . 62 Thus it 
remained to the time of the World War. Whether the 
authorities concerned will now grant freedom in this most 
important business remains to be seen. Some men are 
slow to learn. 

Generally speaking, the countries placed under the 
jurisdiction of the Propaganda enjoyed more liberty in 
the matter of electing prelates, i. e., Rome there had full 
sway in appointing candidates to vacant sees. Some 
traces of the old method of electing by cathedral chapters 
are left in what is called recommendation, which, how¬ 
ever, was not granted to all countries in exactly the 
same terms. The main features of this mode consist in 
selecting three candidates (dignissimus, dignior, dignus) 
and sending their names, either revised or not revised 
by the bishops of the province, to Rome. But in some 
minor points the system differed in various countries. 
Thus in Ireland, since 1829, parish priests are allowed 
to vote for three candidates, while the bishops may only 
pass judgment on the names thus proposed. In England, 
after 1852, the canons of the chapters alone were per¬ 
mitted to vote; but after 1874, the bishops were allowed 
to add names of their own choice, both lists being then 
forwarded to the Propaganda. Scotland has the same 
mode in dioceses where there is a chapter; where the dio¬ 
cese has no chapter, the recommendation is made by the 
bishops, including the archbishop of Glasgow. 63 In the 

52 Sec Kirchenlexicon, ed. II, Vol. XII, 1148 f. 

83 See Taunton, The Law of the Church, 1906, page 86 ff. 


APPOINTMENT OF BISHOPS 


xix 


United States, by the decrees of Jan. 21, 1865, and Sept. 
21, 1885, the diocesan consultors and irremovable rectors 
met under the presidency of the metropolitan or his senior 
suffragan and chose three candidates as dignus, dignior, 
dignissimus, respectively. The archbishop and his suffra¬ 
gans had the same right; and both lists were then for¬ 
warded to the Propaganda and, later on, to the S. C. of 
the Consistory, with whom lay the final choice. 54 Since 
July 25, 1916, a new method has been adopted ad experi- 
menti instar ; 55 whether it will prove satisfactory is hard 
to say. It is also difficult to describe this mode by a 
proper term, but we may call it a proposal for future 
appointments. The decree may be summarized as fol¬ 
lows : 

(1) The so-called candidates, whose names may be 
proposed, must enjoy certain qualities. They should be 
of mature age, but not too old, experienced in the prac¬ 
tical administration of temporal and spiritual affairs, of 
sound Catholic doctrine,—which means that they must 
not be suspected of Modernism—of more than ordinary 
learning, faithfully devoted to the Holy See, of good con¬ 
duct and piety, of sound manners and health. Their 
family affairs should also be examined (art. 2). 

(2) All bishops are called upon to send to their metro¬ 
politan the names of one or two priests, either of their 
Dwn diocese or outside of it, whom they regard as pos¬ 
sible candidates for a future choice. This should be done 
n Lent, every two years, beginning with 1917 (art. 1). 
In order that the bishops may be properly informed as to 
he character of the candidates, they should informally 
md secretly ask their consultors and irremovable rec- 
ors—a reminiscence of the old method. They are, how- 

54 See Cone. Baltim. Ill, tit. II, n. 15. 

55 See Acta Apost. Sedis, Vol. VIII, 400 ff. 


XX 


INTRODUCTION 


ever, in no wise bound to accept or follow the information 
thus obtained (art. 2 ff.). The metropolitan follows 
the same procedure in his archdiocese, and ultimately 
draws up an alphabetical list of the names received from 
all the bishops of the province (art. 5). 

(3) The bishops meet with their metropolitan after 
Easter, at a convenient place and time, without attracting 
the attention of outsiders. To their meeting no other ec¬ 
clesiastic is admitted. One of the bishops (the youngest 
or the ablest) acts as secretary. After having taken the 
oath of secrecy, the bishops enter into a moderate (mod¬ 
erate, we suppose, as to time and spirit) discussion con¬ 
cerning the candidates proposed. Then they proceed to 
ballot, in alphabetical order, the white ballot signifying 
“yes,” the black one “no,” and a neutral color, “I abstain” 
(art. 12). The metropolitan and the secretary act as 
tellers. More than one vote may be taken. After a 
result has been obtained, the minutes of the discussion 
and the result of the balloting are drawn up*in the form 
of a document by the secretary, who reads the same to 
his fellow-prelates and has a copy made, which must be 
sent to the Apostolic Delegate, by whom it is forwarded 
to the Consistorial Congregation (art. 15). 

This, in substance, is the decree regulating the “pro¬ 
posal” of names, which are to be kept on record in Rome 
as well as in the secret archives of the metropolitan, at 
least as long as there is no danger of divulgation. It is 
evident that the last shred of the elective rights which 
were formerly exercised by the chapters, as repre¬ 
sentatives of the clergy and the people, has thus been 
destroyed. 

It is to be added that neither a recommendation nor, 
much less, a proposal, creates the ius ad rem which was 
and is inherent in elective bodies. 


APPOINTMENT OF BISHOPS 


xxi 


The late war seems to have paved the way to further 
unification in the appointment of bishops. Thus the 
mode prescribed by Rome for the U. S. has, within the 
last six years, been extended, although with some modifi¬ 
cations, to the following countries: 

1. Canada and Newfoundland, by decree of the S. C. 
Consist, of March 19, 1918. 56 

2. Scotland, by decree of the S. C. Consist, of Nov. 
20, 1920. The bishops assemble every three years to 
draw up a list of names; they should also ask canons and 
experienced priests as to suitable candidates. 57 

3. Brazil, by decree of March 19, 1921, according to 
which the bishops meet every three or five years to draw 
up a list; if necessary or convenient, the bishops of two 
provinces may assemble together; the prelates niillius are 
also to take part in this procedure. 58 

4. Mexico, by decree of April 30, 1921, which lays 
down the same rules as for Brazil; the Vicars Apostolic 
also take part in these meetings. 59 

5. Poland, by decree of Aug. 29, 1921, which allows 
the bishops to meet every three years. 60 

The method thus applied to the aforesaid countries 
seems to be taken, at least in nucleo, from a decree issued 
by the S. C. of the Propaganda, May 1, 1887, for Aus¬ 
tralia, which prescribed that every three years the bishops 
should send secretly to their metropolitan and to the S. 
Congregation the names of priests whom they deemed 
worthy of the episcopal dignity. 61 

56 A. Ap. S., XI, 124 ff. 

™Ib., XIII, 13 ff. 

ss lb., XIII, 222 ff. 

59 lb., XIII, 379 ff- 

60 lb., XIII, 430 ff- 

61 See Taunton, l. c. f p. 94. 



xxii CONSECRATION OF BISHOPS 


4. Consecration of Bishops 

Before the bishops elect were consecrated, or at least 
at the time of consecration, they had to take an oath of 
obedience to their metropolitan. This oath contained the 
promise of observing the sacred canons and of remaining 
in union with the Apostolic See. Whether St. Boniface, 
the Apostle of Germany, was the first who imposed this 
oath 011 his suffragans, 02 after he himself had made 
this promise to the Pope in person, seems doubtful, be¬ 
cause formulae in the Liber Diurnus appear to point 
to a remoter age. Be that as it may, the fact is that this 
oath, or inramentum fidelitatis, was generally demanded 
of bishops after the investiture quarrel. 63 The formula, 
now simply transferred to the Pope, is given in the 
Decretals of Gregory IX, where we also learn that rati¬ 
fication and, more especially, consecration were reserved 
to the Holy See. 64 In a somewhat enlarged form the 
text of the oath was embodied by Clement VIII in the 
Caeremoniale Episcoporum, in 1598. 

The date or time for consecration—unless the texts 
bearing on that subject are taken to mean election—was 
not always the same. Sometimes as much as a year was 
allowed to elapse after the demise of the predecessor. 
This seemed inconvenient, and the Council of Chalcedon 
(45 1 ) therefore ruled that, unless inexorable necessity 
demanded a postponement, the ordinatio episcopi should 
take place within three months from the death of the 
former bishop (can. 25). A fast of three days, which 

62 Thus Thomassinus, Vetus et Nova Ecclesiae Disciplina, P. 
II, lib. II, cap. 44, n. 9 (ed. Magunt., 1787, Vol. V, p. 297). 

es Ib., cap. 46, n. 3 (ed. ext., V. 311 f.) 

64 See c. 4, X, II, 24. 


INTRODUCTION 


xxiii 

the candidate generally spent in a monastery, preceded 
the act of consecration. 65 

For the installation or consecration of bishops it was 
considered indispensable that it should be entrusted to a 
more exalted authority than an individual bishop. This 
authority could be none other than the superior jurisdic¬ 
tion of the Church, that is, the collective hierarchy. As 
it was impossible to bring together all the members of the 
hierarchy at each ordination, it was arranged that they 
should be represented by a group of neighboring bishops, 
or, in certain places, by the metropolitan. Hence the 
obligation of having three bishops for a consecration to 
the episcopate, an obligation universally accepted from 
the beginning of the fourth century, unless the Pope him¬ 
self was the consecrator. Besides this intervention of 
at least three bishops, episcopal ordination was charac¬ 
terized, with the same universality, by the ceremony of 
the open book of the Gospels being placed on the head of 
the candidate. This rite, which was observed as early 
as the fourth century, cannot have been altogether primi¬ 
tive, but it is certainly very ancient. 66 

The bishops consecrated by the Pope were almost al¬ 
ways those of his own metropolitan province. They 
were not chosen by him, but elected in their several 
localities. The election being over, an official report or 
decree was drawn up, which was signed by the notables 
of the place, both clerical and lay, and the future bishop, 
accompanied by some representatives of his Church, there¬ 
upon set out for Rome, where the election was verified 
and the candidate examined. If the election was found 
to have been regular, and the Pope approved of the 

65 See Martene, De Antiquis Ecclesiae Ritibus, ed. Antwerp., 
1763, II, 25 ff. 

66 See Duchesne-McClure, Christian Worship, 1903, pp. 377 f. 


xxiv ENCOMIUM OF THE EPISCOPATE 


choice of the electors, the consecration followed. There 
was no special time of the year assigned for this cere¬ 
monial, but it had always to take place on a Sunday. 

A special formulary was followed, but the Pope alone 
officiated at this ceremony, although he was often sur¬ 
rounded by bishops. 67 

In countries which followed the Gallican usage the con¬ 
secration of a bishop was usually effected in the Church 
over which he was called to preside. The metropolitan 
and bishops of the province, after the election, as stated 
above concerning the Frankish Church, conducted the 
ordination. The president of the assembled bishops pre¬ 
sented the elect to the clergy and people. This presenta¬ 
tion was accompanied by an address. When the people 
had pronounced the “Dignus est” the consecrating bishop 
called upon the congregation to pray, whereupon followed 
the consecrating prayer and the anointing of the hands, 
also accompanied by a prayer. 68 


5. Encomium and Virtues of the Episcopate 

Ratherius, formerly bishop of Verona, later of Liege, 
the diocese in which he was born, had been imprisoned 
by King Hugh of Italy, at Pavia. There he composed, 
about 936, his famous Praeloquia. Book III, tit. VI, n. 
12, reads like a compendium of all the attributes and 
epithets which, before his time, were written on the epis¬ 
copal office and may, therefore, find a place here as a 
summary of the eulogies with which early ecclesiastical 

67 H>., pp. 359 f. 

68 lb., pp. 37 2 ff* the Pontificate Egberti Eboracensis 
Archiepiscopi, of the IXth century, contains the anointing of 
hands and the specific prayer for this act; see Martene, /. c., 
PP- 3 i f. 


INTRODUCTION 


XXV 


writers honored the episcopate. He addresses the King 
thus: “Boldly let me tell you what the bishops are, and 
if I say boldly, it is because I have taken it from divine 
authority: gods they are, lords they are, Christs they 
are, heavens, angels, patriarchs, prophets, apostles, evan¬ 
gelists, martyrs they are; they are anointed, are kings, 
princes and judges, not only of men, but of angels as 
well; rams of the Lord’s flock they are and pastors of 
sheep that have been washed in the blood of Christ; they 
are teachers and heralds of the coming Judge; they are 
watchmen and the apple of the eye of the Lord, friends 
of the living God and His sons; fathers they are, the 
lights of the world and the stars of heaven, pillars of the 
church and physicians of souls; as doorkeepers of par¬ 
adise and holders of the keys of heaven they are able to 
open and close heaven, they are the clouds upon which the 
Lord has prepared his ascent, and the foundation upon 
which rests the whole structure of the temple of God.” 69 
This encomium was indeed, bestowed upon the dignity 
as such, but it may justly be attributed to all those bishops 
who realize that the name “bishop” is a burden, and not 
merely an honor. To assume such a burden requires 
strong minds, great souls imbued with virtues that are 
not based upon merely natural motives, but surpass in 
splendor and efficacy those practised by the faithful. 
Of these virtues it is not necessary to make mention in 
particular. St. Gregory the Great, in his letters as well 
as in his work on the Pastoral Office, has many beautiful 
sayings about them. He recommends above all charity 
and humility, fortitude and vigilance. Of St. Desiderius, 
Bishop of Cahors, it was said that “he was a staff to the 
blind, food to the hungry, drink to the thirsty, salva¬ 
tion to the wretched and consolation to the desolate.” 


Migne, P. L., 136, 277. 


xxvi ENCOMIUM OF THE EPISCOPATE 


Truly, therefore, was it said by the Council of Trent 
that the office of bishop was fearful even to the shoul¬ 
ders of angels. 70 

It appears proper to point out the nature and qualities 
of bishops before detailing their rights and obligations, 
or, in other words, first to consider the person, and then 
the inherent as well as accidental attributes of his office. 
Thus in metaphysics, too, the substance and subsistence 
are laid out, after which the propria and accidentia are 
set forth. After this preliminary tract on the person of 
the bishop, the episcopal rights and obligations of bishops 
and all those who enjoy episcopal or quasi-episcopal 
jurisdiction shall be explained in the order of the Code. 
Only it should be noted that the terms we give to each 
of the diverse powers are to be taken as comprehensive, 
though not always adequately distinguished, denomina¬ 
tions of the several rights. Thus, to legislative power 
may be added the administrative power, which is really 
dispersed throughout the three first books of the Code. 
The judiciary power of bishops is more or less limited 
to the fourth book of the Code, and the coercive power is, 
also more or less, confined to the fifth book. To have 
some guiding principle, however, we retain the division 
of the triple power, and premise as Part I, the tract on 
the person and qualities of bishops. Hence the whole 
treatise shall comprise: 

Part I. The Dignity and Qualities of Bishops. 

Part II. Episcopal Duties and Privileges. 

Part III. The Legislative and Administrative Power 
of Bishops. 

Part IV. The Judiciary Power of Bishops. 

Part V. The Coercive Power of Bishops. 

<0 Sess. 6, c. i De Ref.; see Phillips, Kirchenrecht i860, 
Vol. VII, P. I, pp. is ff. 


PART I 


THE DIGNITY AND QUALITIES OF BISHOPS 

The Code says (can. 329) : “The Bishops are the suc¬ 
cessors of the Apostles and, by divine institution, are 
placed over individual churches, which they rule with 
ordinary power under the authority of the Roman 
Pontiffr 

1. Concerning the term bishop, we refer to the intro¬ 
ductory chapter. The bishops are the successors of the 
Apostles. This is their historical connection with those 
whom Christ endowed with jurisdiction to rule the 
Church of God. 1 However, there is a notable distinction 
between the Apostles and their successors. For the 
Apostles had received power over the whole church, or 
all communities of the universe, although they, too, at 
least implicitly, exercised their power only in union with, 
and subject to, the superior power of St. Peter. In 
other words, the power of the Apostles was not locally 
circumscribed or limited. The consequence is that the 
bishops, as a body, i. e., as collegium episcoporum, suc¬ 
ceed the body of the Apostles, the collegium apostolorum. 
For, if we except some ancient sees, like those of Jerusa¬ 
lem, Patras, etc., the sees of the other Apostles are not 
even historically certain. It would lead to an absurdity 
to say that individual bishops succeed individual Apostles. 
There is also another, dogmatical rather than juridical 


1 Acts XX, 28. 


1 


2 


DIGNITY AND QUALITIES 


reason for distinguishing the bishops from the Apostles. 
The latter, as is commonly maintained, enjoyed certain 
personal gifts, the principal one of which was infallibility. 
This gift, indeed, must be vindicated to the body of 
the bishops (e. g., when assembled in general council), 
but not to any individual bishop. 2 

2. The Code says that bishops are placed over individ¬ 
ual churches by divine institution. This is but the 
logical consequence of the previous clause. For if the 
bishops are the successors of the Apostles, whom the Lord 
Jesus Christ chose and made his heralds, it follows that 
the episcopate is of divine institution, and its origin, 
therefore, is divine. But how are they placed by divine 
institution over single churches? Is there, or was there, 
any direct commission given by Christ to this effect? 
The Lord said: “Going therefore, teach ye all nations: 
baptizing them in the name . . . , teaching them to ob¬ 
serve all things whatsoever I have commanded you” 
(Math. XXVIII, 19 f.). This threefold power of teach¬ 
ing, sanctifying, and commanding was thus conveyed to 
all the Apostles and all their successors, vis., the Catholic 
episcopate as a body. But the Apostles, by choosing or 
appointing a residential prelate or bishop in an individual 
place, limited this power to a certain people or territory, 
as St. Paul did with regard to Titus (Tit. 1, 5). This or¬ 
der must doubtless refer to divine institution, not merely 
to divine providence. It was, then, by divine command, 
that a division of the field of labor, or territorially circum¬ 
scribed jurisdiction, was introduced. “The episcopate 
is one, part of which is held by each one of the 
bishops for the whole,” is a well known phrase of St. 

2 Bouix, l. c., I, 47 ff.; Phillips, K.-R., 1845, Vol. I, 175 ff.; see 
S. Cyp., Ep. 68, n. 4 ( Antenicene Fathers, 1899, Vol. V, p. 373). 


DIGNITY OF BISHOPS 


3 


Cyprian, 3 which expresses both the general power which 
bishops all have by virtue of the episcopate, and the in¬ 
dividual power of single bishops in their respective sphere. 
The early writers abhor nothing more than interference 
by one bishop with the rights of another. 

3. This power is ordinary, but subject to the authority 
of the Roman Pontiff. It is called and is ordinary, be¬ 
cause it flows from the episcopate, or from the episcopal 
office, which has been formerly, i. e., as such and in its 
essential features, instituted by Jesus Christ. 

However, by reason of the primacy, it is quite intel¬ 
ligible and necessary that the power of the bishops should 
be subject to him who succeeds exclusively and fully to 
the primacy of the entire Church, viz., the Roman Pontiff. 
Unity and harmony, especially among the sacerdotes 
(bishops), require that there should be one center. Al¬ 
though all the Apostles were equally chosen by Our Lord, 
yet one was preferred, thus indicating the dependence of 
the bishops upon the one Sovereign Pontiff. 4 

This subjection to the authority of the Roman Pontiff 
is expressed by the ratification or confirmation of the 
bishop-elect, as well as by the consecration, which is re¬ 
served to the Apostolic See. For although, as stated in 
the introductory chapter, it would not be historically cor¬ 
rect to say that the Roman Pontiff always supervised the 
election and consecration of all the bishops, yet it is cer¬ 
tain that this right is inherent in the primacy. 5 Conse- 

3 De Unitate Eccl., n. 5 (Antenicene Fathers, Vol. V, 423); 
the footnotes of the editor and his explanations, however, are 
at times amusing rather than instructive. 

4 S. Cyp., Ep. 68, n. 5, ad Florent. (Antenicene Fathers, V, 
373 f-)- Rather strained is the explanation of Blat, Commen - 
tarium, 1921, 1 . II, 341. 

5 See c. 2, 6°, III, 4. 


4 


DIGNITY AND QUALITIES 


quently, can. 329, § 2 reads: the Roman Pontiff freely 
nominates the bishops. Whether the term nominare is 
used to describe designation or nomination in the sense 
of royal or governmental nomination, may perhaps be 
disputed. But the following paragraph of can. 329 ap¬ 
pears to refer to free appointment. 6 Hence the sense 
of paragraph 2 is that the Roman Pontiff has the inherent 
right to nominate to all vacant sees, unless, as § 3 states, 
the elective right has been granted to a body of electors. 
By this body of electors— aliquod collegium —is here un¬ 
derstood a diocesan chapter which has the right to elect, 
not merely to propose or recommend. Therefore can. 
329, § 3 refers to can. 320, which requires an absolute 
majority, not counting invalid votes, unless the statutes of 
the respective chapter demand a greater number, say, for 
instance, two-thirds of the votes. It is not necessary 
to recall the requisites for valid election laid down in can. 
160-178; for in English-speaking countries there are no 
elective chapters in the juridical sense. 7 

There is, however, a question arising from our canon, 
namely, concerning the source or origin of episcopal juris¬ 
diction. This question was hotly agitated, but not settled, 
at the Council of Trent. The theologians who debated it 
formulated the point at issue quite clearly. Do the indi¬ 
vidual bishops receive their jurisdiction immediately from 
God, or from the Roman Pontiff? The question, there¬ 
fore, is not, whether the episcopal jurisdiction in gen¬ 
eral, or of the body of bishops as such, is of divine insti¬ 
tution; much less whether the episcopate as such was di¬ 
vinely established;—but whether the individual bishops 

6 Blat, /. c., p. 342, is of a somewhat different opinion, but § 3 
of can. 148 appears to contradict him. 

7 Except as far as the election of an administrator is con¬ 
cerned. 


DIGNITY OF BISHOPS 


5 


( singuli episcopi) obtain their jurisdiction from the Pope 
as the immediate vehicle and grantor of this jurisdic¬ 
tion. 8 There is no doubt that a certain legend found in 
the writings of Clement of Alexandria as well as the so- 
called Dionysius the Areopagite had some influence in 
forming the affirmative opinion. 9 The exaggerated texts 
of Gratian, which are not borne out by history, could not 
contribute to the viewpoint of St. Thomas, who compares 
the papal power with that of the Caesars over the procon¬ 
suls. 10 Yet even the authority of the princeps scholae 
was insufficient to convince the Fathers of the Council of 
Trent of the efficacy of the arguments proposed during a 
long meeting on Oct. 20, 1562, by Fr. Lainez, S. J. One 
of his opponents argued thus: The episcopate is a sacra¬ 
ment, and consequently of divine right or institution; but 
jurisdiction belongs to the episcopate, therefore, episcopal 
jurisdiction, too, is of divine right. To this rather solid 
argument, the answer was Nego maiorem, because the 
episcopate is not an order distinct from the priesthood. 11 

8 See Bouix, De Epise op o, 1859, I, 55 ff. 

9 This legend is contained in the Hypotyposeis of Clement 
Alex., book V (see Clements Alex., by Otto Stahlin, Vol. Ill, 
196, in Die Grieclt. Christl. Schriftsteller der ersten drei Jahr- 
hunderte, Leipzig, 1909), where we read: Christ is said to have 
baptized Peter, and Peter baptized Andrew, James and John, 
and these the rest of the Apostles. On episcopal consecration 
our text is silent, but a reference to it appears in some other 
edition (see Phillips, K.-R., I, 188). 

10 See c. 1, Dist. 12; cc. 1 and 2, Dist. 22; c. 15, C. 24, q. 1.— 
Can. 1, Dist. 22 is, in a somewhat distorted rendering, taken 
from Peter Damian (Migne, P. L., 145, 67 f.) ; cfr. S. Thom., 
Sent. II, Dist. 44, q. 2; v. Scherer, K.-R., 1886, II, 557 f. 

11 See Pallavicini, Istoria del Concilio di Trento, 1846, Vol. 
Ill, 105 ff.; 103 f.; Grisar, in the Zeitschrift fiir kath. Theologie, 
1884, 453 ff.; 727 ff.; J. B. Andries, Alphonsi Salmeronis, S. J ., 
Doctrina de Iurisdictionis Episcopalis Origine ac Ratione, 1871. 


6 


DIGNITY AND QUALITIES 


The question remained in statu quo . The Vatican Council, 
while it attempted no solution, certainly did not counte¬ 
nance the Lainez theory, but mentions ordinary and im¬ 
mediate episcopal power. 12 Does the Code favor the 
Lainez idea? We hardly believe so; for the text, as 
given, clearly states that the bishops are placed at the 
head of individual churches by divine institution. Con¬ 
sequently, we may safely say that episcopal jurisdiction 
is radically and fundamentally conveyed by consecration, 
but may, de facto, be withheld in case no assignment is 
made to a particular church. No one ever doubted, or 
can reasonably doubt, that the very nature of the primacy 
of the Roman Pontiff requires subjection to him as the 
supreme authority. 

The Synod of Pistoia (1786) was wrong in emphasiz¬ 
ing the rights of the bishops to the detriment of unity in 
faith and government. For although it is legitimate and 
proper to say that the bishops are placed over the in¬ 
dividual churches by divine institution, and therefore 
obtain the necessary power through consecration, yet 
bishops, too, need higher guidance, not only in matters 
of faith and morals, but also as to universal discipline. 
Therefore, the episcopal power must not be conceived 

12 Sess. IV, cap. 3: “Tantum autcm abest, ut haec Summi 
Pontificis potestas officiat ordinariae ac immediatae illi episco- 
palis iurisdictionis potcstati, qua episcopi, qui positi a Spiritu 
Sancto (cf. Act 20, 28) in Apostolorum locum successerunt, 
tanquam vcri pastores assignatos sibi greges singuli singulos 
pascunt et regunt, ut eadem a supremo ct universali pastore 
asseratur, roboretur ac vindicetur, secundum illud sancti 
Gregorii Magni: “Meus honor est honor universalis Ecclesiae. 
Meus honor est fratrum meorum solidus vigor. Turn ego vere 
honoratus sum, cum singulis quibusque honor debitus non 
negatur.” (Enchiridion Symbolorum, ed., Denzinger-Bannwart, 
1921, n. 1828). 


THE PROCESSUS INFORMATIVUS 


7 


as so stereotyped that it could not be subject to 
eventual changes, either restrictive or extensive. If this 
were not so, the door would be wide open to schism and 
heresy. 13 

On the other hand it is quite certain that the Pope, 
with all his power, could not abolish the episcopal office 
and rule the Church through vicars. 

Another corollary is that the bishops, being the suc¬ 
cessors of the Apostles, are superior in power to the 
priests (presbyteris). This is de fide. 1 * 


THE PROCESSUS INFORMATIVUS 

Before an ecclesiastic is promoted to the episcopate, 
his fitness mast needs be ascertained by means which the 
Apostolic See has determined (can. 330). 

We have seen above that the metropolitans, and, in 
case of Italian bishops, the Pope, formerly examined the 
candidates before they were consecrated. After the 
XHIth century, more particularly through the reserva¬ 
tions introduced by Benedict XII, in 1334, all bishops 
had to be confirmed by the Apostolic See. The Council 
of Trent prescribed an instructio concerning the qualities 
of the candidates, entrusting this examen to the metro¬ 
politans, who were commanded to perform this task 
conscientiously at provincial synods and to send a report 
of the proceedings to the Apostolic See. There another 
investigation was made by a Cardinal designated for that 
purpose. The “Cardinal Relator,” assisted by three 

13 See propp. 6 and 8 of the Synod of Pistoia, condemned by 
Pius VI, “Auctorcm fidei” Aug. 28, 1794 (Denzinger-Bann- 
wart, n. 1506, n. 1508). 

14 Cone. Trid., sess. XXIII. can. 7; cap. 4 (Denzinger-Bann- 
wart, n. 960; n. 967). 


8 


DIGNITY AND QUALITIES 


other cardinals, reported at a (secret) consistory, and 
their report was read and adjudged in another (semi¬ 
public) consistory. Finally the chosen candidate was 
announced in a public consistory. 15 Gregory XIV reg¬ 
ulated this processus somewhat more in particular, espe¬ 
cially as to the inquiries to be made outside the Ro¬ 
man Court ( extra Curiam) and the procedure at Rome 
itself. 16 

Clement VIII (1592-1605), according to Fagnani, 17 
instituted the Congregatio Examinis Episcoporum, which, 
however, examined only candidates for Italian bishoprics. 
In 1627, Urban VIII issued a very detailed instruction 
regulating the procedure for the processus informativus. 
The (( Sapienti consilio ” of Pius X, June 29, 1908, which 
was embodied in the Code, committed the canonical in¬ 
quisition or processus to the S. C. Consistorialis, which 
receives the documents from the Secretary of State in 
cases where the civil governments have something to say 
concerning candidates for bishoprics. 18 

For the United States and all countries where the new 
mode of “proposal” is observed, the decree of July 25, 
1916, is the norm for the processus, 19 


QUALITIES REQUIRED BY LAW 

The Code (can 331) rules that to be fit for the epis¬ 
copacy, 

15 Sess. XXII, cap. 2, De Ref. 

16 “Onus Apostolicae," May 15, 1591 (Bouix, /. c., 208 ff.) 

17 Commentary on c. 10, X, I, 9, n. 61. 

18 See can. 248, § 2; can. 255. 

19 The decrees of March 30, 1910, and July 2, 1910 ( A . Ap. S., 
II, 286, 648) are out of date. 


THE PROCESSUS INFORMATIVUS 


9 


(1) The candidate must be of legitimate birth. Legiti¬ 
mation by a subsequent marriage is not sufficient; the 
parents must have lived in lawful wedlock at the time the 
candidate was born. 

(2) The candidate must be thirty years of age and in 
sacred orders, i. e., a priest. As to age, the old law was 
not quite definite up to the Decretals, and the Tridentine 
Council did not fix the precise age, but simply referred 
to the canons. As to the time during which one had to 
be in sacred orders, the Council required only six months, 
whereas the new Code requires five years. 

(3) The moral qualifications are: he must be of good 
moral standing, pious, zealous for souls, prudent, and 
endowed with all the qualities necessary to govern the 
diocese to which he is appointed. 

(4) The scientific equipment is thus described: the 
candidate should be a doctor, or at least licentiate, in 
theology or Canon Law, with a degree obtained in a 
Catholic university or institute approved by the Holy 
See; or if he has no degree, he should be well versed in 
theology and Canon Law. It is not probable now-a-days 
that, as in the time of Honorius III (1216-1227), one 
would be made a bishop who could not read grammar, but 
the standard of scholarship laid down by the Code must 
be strictly insisted upon. For, as Barbosa says, a bishop 
without learning is like a ship without a rudder, a clock 
without weights, a hen without wings. 20 A bishop should 
be particularly “well versed” in theology and Canon Law 
because the former governs the court of conscience, while 
the latter is required for the forum externum. 

Athenaeum is generally used for a university, whilst 
institutum studiorum may mean a faculty or college, such 
2° De Officio et Potestate Episcopi, P. II, alleg. 1, n. 25. 


10 


DIGNITY AND QUALITIES 


as, for instance, St. Thomas Academy in Rome, or a 
seminary which has the right to confer academic degrees. 
There is a hidden reminder of the requisite of the aca¬ 
demic degree in the fact that the bishops of this country 
append “D. D.” to their names: 

If the candidate belongs to a religious institute, he 
must have a title similar to D. D. or D. J. C. obtained 
from his major superior, or at least a testimony of real 
ability. 

The maiores superiores are those mentioned in can. 488, 
8°, viz., the Abbot Primate, the Abbot President, the 
Abbot, the Superior General, the Provincial, and all 
others who have powers equivalent to those of a provin¬ 
cial. 

The same qualities are required for all candidates for 
episcopal sees, no matter whether they are elected, pre¬ 
sented, or designated, for the law makes no distinction. 
Nor is there any reason for granting an exemption where 
the public welfare is concerned, since these qualities are 
prescribed not merely for the person, but for the office, 
which is one of great dignity and importance. Nothing, 
says Innocent III, is more offensive to the Church of 
God, than unworthy prelates ruling souls. 21 The Roman 
Pontiff alone is competent to judge whether or not the 
qualities described in the papers relating to the processus 
informativus are sufficient. Of course, in case of ne¬ 
cessity or utility, the Pontiff may dispense with some of 
the required qualifications. 

Can. 332 rejects the claim of the so-called regalists 
that the right of presentation includes investiture, and 
that a bishop can consequently enter upon the govern¬ 
ment of his diocese without papal investiture and docu- 


21 C. 44, X, I, 6. 


CONSECRATION 


ii 


ments. 22 The contrary is true. Only by ratification on 
the part of the Apostolic See can one become bishop or 
Ordinary of a diocese. 

This confirmation is preceded by two acts: the pro¬ 
fession of faith and the oath of allegiance to the Church. 
The oath must be taken before an Apostolic delegate, 
personally and not by proxy. If the consecration is per¬ 
formed in virtue of Apostolic letters, the oath of fidelity 
or loyalty is taken into the hands of the consecrator. 23 


EPISCOPAL CONSECRATION 

(Can. 333) 

Unless prevented by a lawful obstacle, one promoted 
to a bishopric, even though he be a cardinal of the Holy 
Roman Church, must receive consecration within three 
months after receiving the Apostolic letters, and within 
four months, take up residence in his diocese. The car¬ 
dinal-bishops of the suburbicarian sees are the only ones 
exempted from this rule. The text is based upon an 
old law, and its meaning is evident, with the possible 
exception of the time within which a newly consecrated 
bishop must go to his diocese. For it might be construed 
either that the four months run from the date of conse¬ 
cration, or that they must be counted from the date 
of having received the Apostolic letters of confirmation. 
In the former case, seven months would be granted ; in the 
latter only four. We believe that the latter interpretation 
is the correct one, because otherwise the clause would 
have no proper starting-point; and hence the omission of 

2 2 See our Commentary, Vol. II, 347 - Here we may observe, 
once for all, that we shall refrain from repeating references 
which are fully given in our commentary. 

23 Can. 1406; Pontificate Rom., De Consec, Electi in Episc. 


12 


DIGNITY AND QUALITIES 


the terminus a quo in the last clause must be supplied 
from that of the first or, “a receptis litteris” This 
seems still more probable if we consider the omission of 
the word ‘'months” in the last clause. 

The consecration of bishops, when it takes place in 
Rome, must be performed in a consecrated church or 
pontifical chapel; but this law does not oblige outside of 
Rome (Ephemerides Liturgicae, Sept., 1923, page 363). 

TAKING POSSESSION OF THE DIOCESE 

(Can. 334) 

To understand the following canon it should be re¬ 
membered that during the vacancy of the episcopal see 
the diocesan chapter was entitled to govern the diocese. 
To the chapter succeeded the Vicar Capitular, or 
Administrator, to be elected by the same chapter within 
eight days from the occurring vacancy. After his elec¬ 
tion the chapter had no right to interfere with the gov¬ 
ernment of the diocese, or to retain any share in its 
administration, either temporal or spiritual. The Vicar 
Capitular was to remain in office until the newly ap¬ 
pointed bishop exhibited his credentials to the chapter. 
For, as Boniface VIII points out, the Apostolic See 
never sends out legates or delegates without credentials; 
and, besides, if proof is demanded from one who poses 
as a priest, how much more diligent should be the invest¬ 
igation if a bishop is to be received! 24 Notwithstanding 
all these provisions, civil governments often forced their 
nominees or candidates upon chapters under the title of 
Provisor or Vicar General, and thus practically removed 
the administrator, and, as it were, prevented the Apostolic 
See from investing or confirming the candidate. Against 

£ 4 C. 1, Extrav. Copun., I, 3. 


CONSECRATION 


13 

this abuse Pius IX, Aug. 28, 1873, issued the Constitution 
“Romanus Pontifex,” part of which is embodied in our 
text. 25 This document forbids any interference or in¬ 
trusion in the government of a diocese before canonical 
possession has been taken of the same—no matter whether 
such interference comes from the episcopal candidate in 
person (as by assuming the reins of government or ap¬ 
pointing a procurator or provisor) and no matter what 
may be the title or pretext under which he thus acts, vis., 
on the claim of being nominated or presented by those 
entitled to nomination or presentation. The law permits 
one designated to the episcopacy to retain and exer¬ 
cise the office of administrator, ofhcialis (can. 1573), or 
oeconomus; provided he held these offices before his ap¬ 
pointment to the episcopate. As bishop-elect, however, 
he cannot validly be chosen (anew) for any of the afore¬ 
said offices. 26 

The law, then, prescribes the mode or act of taking 
juridical possession. A residential bishop takes pos¬ 
session of his diocese as soon as he presents the Apostolic 
letters of appointment to the cathedral chapter. This 
exhibition ( ostendere ) must be performed in the diocese 
to which he has been appointed. Hence he cannot call 
the chapter to another diocese, because this is a juridical 
act with legal consequences, and is therefore limited as to 
territory. The juridical act must be recorded by the sec¬ 
retary of the chapter, or the diocesan chancellor, who 
must be present when the Apostolic letters are shown to 
the chapter. However, if the newly appointed bishop 
should choose to present the Apostolic letters by proxy, 
he is free to do so. 27 Wherever diocesan consult or s take 

25 A. S. S., 1879, Vol. VII, 401 ff. 

26 The penalty in can. 2394. 

27 According to the regulae iuris 68 and 72. 


14 


DIGNITY AND QUALITIES 


the place of the cathedral chapter, these must be present 
in a body (collcgialiier ), together with the chancellor or 
secretary. Whether the Apostolic letters are shown to 
each one, or read to all who are present, is irrelevant. 
But it must be signified in such a way that the contents of 
the letter are understood, by all, or at least, that the act 
cannot be misconstrued. 


PART II 


EPISCOPAL DUTIES AND PRIVILEGES 

There are incumbent on all residential bishops five obli¬ 
gations, which the Code mentions successively, viz. : resi¬ 
dence, Mass for the people, diocesan report, visitation ad 
lirnina, and diocesan visitation. 

RESIDENCE 

(Can. 338) 

Residing, from residere (re and sido), to settle, take up 
one’s abode anywhere in order to rest or to remain there, 
implies staying in a place. But in connection with pas¬ 
toral residence it means not only material staying, but “a 
laborious or formal abiding” in the place of one’s office. 
The Code defines the law of residence, the reasons which 
justify absence, the obligation of residing at the cathe¬ 
dral, and the liability incurred by unlawful absence. 

1. Bishops, even though they have a coadjutor, are 
obliged by the law of personal residence in the diocese. 
This obligation arises from their office, which is one of 
superintendence and vigilance. And if this office is of 
divine institution, it is not too much to say that, radically 
at least, the precept of residence rests on divine law. 1 If 
the bishops are set over particular churches by divine 

1 Bouix, De Episcopo, Vol II, pp. 2 ff., endeavors to weaken 
this argument, but admits that the probable opinion is in its 
favor. 


IS 


16 EPISCOPAL DUTIES AND PRIVILEGES 


institution, it clearly follows that residence is required 
by the divine law. 

Popes and councils have again and again insisted on 
this important duty. Gregory the Great was very strict 
in enforcing the obligation. 2 Benedict XIV complained 
of some bishops in Ireland who gravely neglected it. 3 
The reform councils of Constance and Trent made this 
duty imperative on all bishops, no matter whether they 
were Cardinals, patriarchs, primates, or metropolitans, 
or merely ordinary bishops. 4 Neither does the Code 
distinguish, for it simply says, episcopi, and stresses the 
fact that the circumstance that a bishop has coadjutors, 
whether coadjutor bishops in the proper sense, or auxil¬ 
iaries, does not dispense him from the obligation of per¬ 
sonal residence. The reason is a twofold one: bishops 
are, as a rule, chosen for their personal qualities (de 
industria personae), and the obligation of residence, as 
stated, means personal attendance and vigilance, not 
merely a material, passive stay in the diocese. Every 
pastor, as long as he is a pastor—and he does not cease 
to be such by receiving a coadjutor—is responsible for 
his flock. 

Note that the first section of this canon insists on 
residence in the diocese, not at the cathedral. 

2. However, the Code allows the three months ? vaca¬ 
tion granted by the Tridentine Council. This time does 
not include the canonical visit to the tombs of SS. Peter 
and Paul (a mere pleasure trip, even when undertaken 
as a pilgrimage, cannot be called a visitatio ad limina) 

2 Epp., 1 . IX, 8; X, io; XIII, 24. 

8 “Grave et permolestum,” Aug. 15, 1741; also, “Quam primunt 
Dec. 3, 1740. 

4 Const., Sess. 43, cap. 12; Trid., sess. VII, cap. 1, De Ref.) 
Sess. XXIII, cap. 1, De Ref. 


RESIDENCE 


1 7 


nor the time spent at a council at which attendance is of 
obligation. (A friendly visit to a provincial or plenary 
council at which a bishop is not obliged to be present, 
because not belonging to that province or country, could 
not be reckoned off.) Lastly,—and this is intended 
mainly for countries (e. g., Austria) in which the bishops 
are ex officio deputies to parliamentary assemblies—bish¬ 
ops are allowed to deduct from the three months allowed 
them for vacation the time they are in duty bound to 
spend outside their dioceses to attend parliamentary ses¬ 
sions. Foreseeing, however, human frailty and astute¬ 
ness, or perhaps also good faith wrongly applied, the 
Code forbids any arbitrary interpretation as to the three 
months’ period by stating that no combination or putting 
together is allowed, because that would favor a bishop’s 
absence from his diocese. 

No mention is made of lawful absence because of a 
civil office, for in that case circumstances are not at the 
command of the bishops. 

Note that a vacation may not be prolonged by taking 
the last three months (Oct. to Dec.) of one year and the 
first three months (Jan. to March) of the following year, 
and staying away six months in succession. All these 
questions were proposed to the S. Congregation under 
Urban VIII and solved as stated in the Code. 

3. Let the bishop not be absent from his cathedral 
church during Advent and Lent, on Christmas day and 
Easter, on Whitsunday and Corpus Christi, except for 
a grave and urgent reason. The text says, “ne abmit” 
which materially differs from the wording of the first 
section. For bishops, to comply with the letter of the 
law, may reside in any part of the diocese; but they 
must repair to the cathedral church on the days men¬ 
tioned. 5 For, says the Tridentine Council, it is becoming 


18 EPISCOPAL DUTIES AND PRIVILEGES 


that the sheep, on those days especially, enjoy the pre¬ 
sence of their pastor and be nourished by him. 5 6 

The same Council alludes to the reasons which may 
excuse bishops from being present on those days, viz., 
munia episcopalia, i. e., episcopal functions, to be per¬ 
formed elsewhere. There may, however, be other rea¬ 
sons. For the text is general. As to Corpus Christi, 
we believe that the law does not oblige in our country, 
or if it does, it applies to the Sunday to which the feast 
is transferred. 

4. The last section of this canon on residence ordains 
that if a bishop is unlawfully absent from his diocese for 
more than six months, the metropolitan must report him 
to the Holy See, and if he is himself a metropolitan, this 
duty devolves on the senior suffragan. Reasons which 
would justify such absence, according to the Council of 
Trent, are: 

(a) Christian charity, for instance, preaching to infi¬ 
dels and heretics, or a lecture which cannot well be post¬ 
poned ; spiritual or bodily help to confreres and people in 
time of distress or calamity, such as war, earthquakes, 
etc.; 

(b) Urgent necessity, relating to his own person, for 
instance, persecution, ill-will of the people, or personal 
infirmity requiring a change of climate; however, the 
danger of contracting disease in times of epidemics and 

5 Fagnani, on cap. 1, X, I, 2, n. ioi, maintained that residence 
at the cathedral was meant by the Tridentine Council; how¬ 
ever, our text cannot be stretched so far. But it is quite true 
what Bouix says (/. c., II, 6), that, if the bishop does not re¬ 
side in the cathedral city, he should have his vicar-general and 
court there. 

6 Trid., Sess. XXIII, cap. 1, De Ref. 


THE MISSA PRO POPULO 


19 


perils common to pastors and flock does not excuse the 
bishop from keeping residence; 

(c) Obedience to superiors, for instance, a call to 
Rome or to the metropolitan, perhaps for a special meet¬ 
ing, trial, canonization, etc. To this class belong the 
visitatio ad limina, and assistance at councils, as is ex¬ 
pressly stated in the Code; 

(d) Evident utility of Church or State, for instance, as 
peacemakers, as extraordinary envoys or counsellors, as 
strike settlers, etc. However, if time permits, it is ad¬ 
visable to inform the metropolitan or the Apostolic 
See. 

Reports concerning the non-observance of the law of 
residence are to be made to the S. C. Consistorialis. 

Although the danger of catching a contagious disease 
does not excuse bishops from diocesan residence, yet they 
are not obliged to administer the Sacrament of Confirma¬ 
tion to persons infected with such a disease, nor to ad¬ 
minister the Sacrament of Baptism or Penance to such 
persons, except in cases where no other minister is avail¬ 
able who could perform these duties. 7 


THE MISSA PRO POPULO 

(Can. 339) 

The Code first 01 all mentions the obligation of every 
residential bishop to apply the Mass for his people, which 
obligation is then explained and applied to different cases. 

1. Every residential bishop must, from the time he 
takes possession of his diocese, apply the Mass for his 
people on all Sundays and holydays of obligation, even 
on suppressed holydays. Neither the meagreness of 

7 Benedict XIV, De Syn. Dioec., XIII, 19, 6. 


20 EPISCOPAL DUTIES AND PRIVILEGES 


revenues nor any other cause furnishes an excuse for not 
complying with this law. This latter clause is similar 
to “notwithstanding anything to the contraryand there¬ 
fore includes all residential bishops. The time when this 
obligation begins is the moment of taking possession of 
the diocese, i. e., after the letters of appointment have been 
shown to the diocesan chapter or the board of consultors. 
This moment also starts the obligation mentioned in § 6 
of this canon, but no farther back than May 19th, 1918, 
when the Code went into effect, because the law is not 
retroactive (can. 10). 

The first of these paragraphs is taken almost verbally 
from the Apostolic letter of Leo XIII, “In suprema,” 
June 10, 1882, where the Pontiff says that one of the 
duties of a pastor is to pray and offer sacrifice for his 
flock, and that this obligation, considered in general and 
as to fixed days, is based on divine law. The Code, in¬ 
sisting upon the Tridentine decrees, authentically explains 
and extends this rule to all bishops and cardinals who 
govern a diocese, and to abbots and prelates nullius. 

The days on which a bishop has to say Mass pro populo 
are all Sundays, all holydays of obligation celebrated in 
foro et choro, and such suppressed feastdays as are now 
celebrated only in choro. The feastdays in foro et choro, 
or holydays of obligation, are: New Year’s Day, As¬ 
cension, Assumption of the Blessed Virgin Mary, All 
Saints, Immaculate Conception, and Christmas (First 
Mass). The suppressed feasts are: Epiphany, Purifica¬ 
tion, St. Matthias, St. Joseph (March 19), Annunciation 
B. M. V., Monday and Tuesday after Easter, Monday 
and Tuesday after Pentecost, SS. Philip and James, Find¬ 
ing of the Holy Cross, Corpus Christi, St. John the Bap¬ 
tist, SS. Peter and Paul, St. James, Nativity of the 


THE MISSA PRO POPULO 


21 


Blessed Virgin, St. Matthew, St. Michael (Sept. 29), SS. 
Simon and Jude, St. Andrew, St. Thomas, St. Stephen 
Protomartyr, St. John the Evangelist, Holy Innocents, 
Pope St. Sylvester (Dec. 31). 

2. On Christmas, or any holyday which falls on a Sun¬ 
day, it suffices to apply one Mass for the people. 

3. However, if a holyday of obligation is transferred 
to another day in such a way that the obligations of hear¬ 
ing Mass and abstaining from servile work are also trans¬ 
ferred to that day— ad qucm —the Mass must be applied 
on the day to which the feast has been transferred. 
Otherwise the obligation remains attached to the day a 
quo. There is, as far as we are aware, no such transfer 
made in this country. For the six holydays are cel¬ 
ebrated on their respective days, and the others impose 
no obligation. 

4. To apply the Mass pro populo is a personal obliga¬ 
tion of the Ordinary. A coadjutor-bishop is not obliged 
to obey this law. Should the bishop be lawfully prevented, 
he may have the Mass pro populo applied by another on 
the day in question. If this cannot be done, the bishop 
himself, or another in his name, may apply the Mass on 
another day. It is, of course, supposed that this “other 
one” will receive the ordinary stipend. The clause: “Si 
ab eius celebratione legitime impediatur” (§4) does not 
mean that a bishop is unable to say Mass at all, but that 
he is not able to apply his Mass pro populo, for instance, 
because he has to say a Mass for a special intention, at 
a funeral, or pro sponso et sponsa, or because he has a 
pingue stipendium for that day and no other. All these 
and similar reasons are considered lawful, provided a 
bishop complies with the rest of the canon. 

5. If a bishop governs two or more dioceses that are 


22 EPISCOPAL DUTIES AND PRIVILEGES 


united aeque principaliter , 8 or if he administers another 
diocese besides his own, he complies with this obligation 
by saying and applying one Mass for all the people en¬ 
trusted to his care. From this it appears legitimate to 
infer that a bishop who retains the pastorship of his 
cathedral, is obliged to say and apply only one Mass on 
the days prescribed, because the cathedral parish forms 
part and parcel of the diocesan flock. 

6. The last section of this canon is, if not a penal sanc¬ 
tion, a canonical warning of the strictly moral character 
of the obligation, which rests on a titulus iustitiae, and 
not merely caritatis. Therefore, if a bishop has ne¬ 
glected to fulfill the obligation mentioned in the preced¬ 
ing paragraphs, he shall as soon as possible apply pro 
populo as many Masses as he has omitted. 

“Quam citius” means, as soon as he becomes aware of 
his mistake, and that no unlawful delay should be inter¬ 
posed ; in other words, he must make the application as 
soon as he has a day free for this purpose. Other obliga¬ 
tions contracted by reason of ordinary stipends must cede 
to this obligation. In case the bishop is lawfully pre¬ 
vented from saying the omitted Masses “as soon as pos¬ 
sible,he may satisfy this obligation through another, but 
he is not obliged to do so. The obligation of bishops to 
apply the Mass pro populo began May 19, 1918, the day 
the Code went into effect. For in regard to bishops and 
bishoprics there could have been no dispute as to pastoral 
duties or limits or the nature of a benefice. 

It is becoming that titular bishops should, ex carifate, 
offer holy Mass occasionally for their diocese; but they 
are not strictly obliged to do so (cfr. can. 348, § 2). 

8 The meaning of aeque principaliter is explained in can. 1419, 

n. 3. 


DIOCESAN REPORT 


23 


diocesan report 
(Can. 340) 

In as far as the diocesan report is, to some extent at 
least, detached from the visit to Rome, this canon contains 
a new law, viz., partly contained in the decree of 
the S. C. Consistorialis, Dec. 31, 1909, “A remotissima,” 
and partly formulated anew. Since the Code has been 
promulgated, the formula mentioned in the first section of 
can. 340 has been issued by the S. Congregation of the 
Consistory, Nov. 4, 1918, and published in the official bul¬ 
letin. 9 The formula contains twelve chapters with 100 
points. In the introduction reference is made to the de¬ 
cree of Dec. 31, 1909, to the Code, and also to the fact 
that the Pope personally revised and approved the for¬ 
mula, which took effect in the year 1921. Then three 
general rules are laid down, which shall be inserted in 
the first paragraph. This reads: All bishops are bound 
to make to the Sovereign Pontiff a quinquennial report on 
the status of their diocese according to the formula issued 
by the Apostolic See. 

The bishops who are obliged by this law are all, no 
matter of what dignity or rank, who govern a diocese, or, 
as the Code calls them, the residential bishops. The rea¬ 
son why the annual report is to be made to the Sovereign 
Pontiff is the latter’s primacy and the bishops’ subordina¬ 
tion to him. But this does not mean that the report must 
be handed to the Pope personally; it goes to the Consis- 
torial Congregation. 

The formula issued in 1918 demands: 

9 “A remotissima,” in A. Ap. S., II, 13 ff.; the formula ibid., 
X, 4 «7 ff- 


24 EPISCOPAL DUTIES AND PRIVILEGES 


i°. that the report be composed, either written by hand 
or typewritten, in Latin; that it be signed by the Ordi¬ 
nary himself, not by the vicar-general or the coadjutor- 
bishop, or by any one else jointly with the Ordinary. 10 
The reason is because the bishop is the sole judge and au¬ 
thority responsible for the report and the status of the 
diocese. The signature must be accompanied, in the same 
writing as the text, by the day, month, and year in which 
the report was dispatched. 

2°. In the first report of each Ordinary, all the (ioo) 
questions contained in the formula must be accurately and 
fully answered. 

3°. In subsequent reports the Ordinaries may omit 
whatever concerns the temporal status of the diocese, pro¬ 
vided that status remains unchanged. 

The meaning of these rules is that every newly ap¬ 
pointed Ordinary, now and forever after, and every Ordi¬ 
nary, though not lately or newly appointed, who sends in 
the first report required from 1921 on, must answer all the 
questions in full. Therefore, the Ordinaries of our coun¬ 
try, who have to send in their report in 1924, must fill 
out the formula in full. In the report of 1929 they may 
omit what concerns the temporal status of their diocese, 
provided it has not materially changed (dc minimis non 
curat praetor). A newly appointed bishop must make 
the full report, even though his predecessor has done so 
before. This is like an inventory which Rome wishes to 
preserve. 

The temporal status of the diocese is chiefly contained 
in the first chapter of the formula, but ch. II also con¬ 
tains much regarding temporal administration. There¬ 
fore, if no substantial change has occurred, reference to 
the first report is certainly allowed. Ch. Ill, n. 24 f., 
10 Blat, /. c., p. 366. 


DIOCESAN REPORT 


^5 

ch. VI, n. 41, ch. VIII, n. 54-59, n. 61-65 also remain 
intact. 

The concluding paragraph of the formula requires that 
in “subsequent” reports the Ordinaries should also state 
the result of the observations eventually made by the S. 
Congregation upon the previous report, whether or not 
there was any progress, or whether the condition of the 
diocese remained about the same. 

2. Section 2 rules: The five years’ terms are fixed 
and common (to all Ordinaries under the respective class) 
and are reckoned from the first day of Jan., 1911. This 
date (1911) is the beginning only for the class first men¬ 
tioned. Therefore, taking the third quinquennium at 
1921, we understand the Code as follows: 

In 1921, the bishops of Italy, Corsica, Sardinia, Sicily, 
Malta, and other minor adjacent islands had to send in 
their reports (the third one for them since 1911). 

In 1922, the bishops of Spain, Portugal, France, Bel¬ 
gium, Holland, England, Scotland, and Ireland with the 
adjoining islands; 

In 1923, the bishops of the rest of Europe, i. e., the 
Eastern portion, from the Rhine to the boundaries of Eu¬ 
ropean Russia, with the adjoining islands; 

In 1924, the bishops of America, North as well as 
South, and the adjoining islands; 

In 1925, the bishops of Africa, Asia, and Australia, and 
the islands adjoining these countries. 

Therefore our American bishops have to send in their 
first full and detailed report, according to the formula 
of 1918, between the first of January and the last of De¬ 
cember, 1924. 

3. The last section sets forth a reasonable exception, 
the acceptance of which is left to the prudent judgment 
of the bishop. If a bishop has been governing his diocese 


26 EPISCOPAL DUTIES AND PRIVILEGES 


only two years or less when his turn conies for making 
his report to the Holy See, he may omit it. The rea¬ 
son is evident. A new bishop is hardly able to know the 
status of his diocese, especially if he has not yet visited 
all portions of it. In this case then, for instance, an 
American bishop who has not yet governed his diocese 
for two years in 1924, 11 may postpone sending his first 
report until 1929. 

THE VISITATIO AD LIMINA 

(Can. 341) 

Each and every bishop—no matter what his rank or 
dignity—must visit Rome in order to venerate the tombs 
of the Apostles SS. Peter and Paul and present himself 
to the Roman Pontiff in the same year in which he is 
obliged to make his diocesan report. The bishops out¬ 
side Europe may make their visit every ten years. 

This ad Umina visit is a personal obligation, but may 
be made through the coadjutor, if the‘bishop has one, or 
through a worthy priest who is a resident of the diocese. 
However, such delegation requires just reasons, which 
must previously be accepted by the Holy See. To this, 
otherwise evident, text a few historical and practical re¬ 
marks may usefully be added. 

The tombs of the princes of the Apostles were from 
the earliest times visited by the faithful and their pastors 
as a sign of veneration for the founders of the Roman 
Church. Cajus, a presbyter of Rome, told the heretic 

11 The question may arise: If one has been a coadjutor for a 
number of years, but succeeded to the see only in 1922 or 1923, 
may he omit the report? We think he may, because he was not, 
during the coadjutorship, a governing or residential bishop in the 
sense of the canon. 


VISITATIO AD LIMINA 


27 


Proculus: “I can show you the trophies of the Apos¬ 
tles.” Two epitaphs testify to the custom of sacred visi¬ 
tation, notably that of Abercius, bishop of Hierapolis in 
Phrygia, who came to Rome to venerate the tombs of the 
Apostles towards the end of the second century. Of 
course, the Italian bishops, who were immediately sub¬ 
ject to the Bishop of Rome as their metropolitan, were 
more numerous and regular in making those visits. But 
it is also true that missionary bishops were sometimes 
summoned to Rome, whence they had received their mis¬ 
sion. Since Paschal II (1099-1118) the metropolitans 
obliged themselves at the reception of the pallium to visit 
the sacred limina at stated intervals. Later on all the 
bishops who were either directly or indirectly consecrated 
by the Pope had to comply with this obligation. A more 
uniform discipline was ushered in when Sixtus V, in his 
Constitution “Romanus Pontifex,” Dec. 20, 1585, ruled 
that all patriarchs, primates, metropolitans, and bishops 
should present themselves at regular intervals before the 
Roman Pontiff, to give counsel and make suggestions 
conducive to the betterment of ecclesiastical conditions. 
Benedict XIV enjoined also the prelates and abbots nullius 
to make the ad limina visit. He permitted bishops who 
were lawfully prevented from making the visit personally, 
to send a representative,—either a secular or regular dig¬ 
nitary, or a priest in good standing. This representative 
had to report the reason of the impediment. Titular 
bishops are not obliged to make the visit, because the text 
binds only those who have to make a report. 

In Rome, the bishops visiting the churches of St. Peter 
(Vatican) and St. Paul (Via Ostiense) must present 
themselves in the sacristies of the two basilicas and in¬ 
scribe their names in a book kept for that purpose. 

The relatio status must be handed in at the Apostolic 


28 EPISCOPAL DUTIES AND PRIVILEGES 


Chancery (Via Vittore Emanuele) to the S. C. Congrega- 
tio Consistorialis. 

During their visit, the bishops must call on the Sov¬ 
ereign Pontiff, in order to pay their respects to the Vicar 
of Christ and, as stated above, to offer their counsels if 
requested. 


THE DIOCESAN VISITATION 

(Can. 343 - 346 ) 

The Code, in the first of these four canons, defines the 
purposes of the canonical visitation. It is to preserve 
sound and orthodox doctrine, to foster good morals, to 
correct evil customs, to promote peace, innocence, piety, 
and discipline among people and clergy, and to regulate 
everything for the best interests of religion, as far as cir¬ 
cumstances permit. The importance of the subject seems 
to require a more detailed comment on these four canons. 

From the Codex Canonum Ecclesiae Africanae we 
learn that, at the beginning of the fifth century, synods 
ruled that the prelates should visit their provinces an¬ 
nually. A council of Tarragona, in 516, commanded the 
bishops on the occasion of this visit to see especially to 
the repair of the churches. In the Frankish Kingdom, 
especially under Charlemagne, the bishops were accom¬ 
panied by a count {comes), who took cognizance of and 
decided cases of a more or less civil nature. A decretal 
of Innocent IV (1252) forbids avaricious exactions, al¬ 
lowing the necessary victuals but no gifts or donations 
of any kind. These rules were renewed by the Council 
of Trent, from which our text is taken almost verbally. 

(1) The episcopal visitation must be made by the 
bishop in person, unless he is prevented by a legitimate 
obstacle, e. g., sickness, or other urgent duties, in which 


THE DIOCESAN VISITATION 


29 

latter case the visitation may be entrusted to the vicar- 
general or some other trustworthy priest. 

(2) The whole diocese must be visited within the space 
of five years, which is a modification of the Tridentine 
law. 

(3) Not more than two companions are allowed, who 
may be taken from the number of canons, though these 
should remonstrate against the exercise of this right by 
the bishop; and the Code reprobates any contrary privi¬ 
lege or custom. 

(4) The persons, things, and places subject to the dio¬ 
cesan visitation are: 

(a) The whole secular clergy of the diocese, also 
cathedral and collegiate chapters, in all matters spiritual 
and temporal. The laity, too, may, if the Ordinary judges 
it expedient, be examined about things pertaining to faith 
and morals, the administration of the Sacraments and the 
care of the church property. The church trustees in par¬ 
ticular are liable to be questioned. 

All non-exempt religious of both sexes are amenable 
to the canonical visit; also exempt religious who are pas¬ 
tors of souls, concerning their pastoral conduct. 

(b) The places which should and may be visited are 
the cathedral church, the parish churches, and public and 
semi-public oratories not in possession of or administered 
by exempt religious. Oratories which, though incor¬ 
porated into an exempt religious body, are served by 
secular priests are subject to visitation. 

The bishop may also visit any parish church held and 
administered by exempt religious, and inspect the bap¬ 
tismal font, the confessionals of the pastor and his as¬ 
sistants, and the altar of the Blessed Sacrament. 

The bishop may also visit the meeting places or chapels 
or confraternities or sodalities of lay persons, even though 


30 EPISCOPAL DUTIES AND PRIVILEGES 

these are erected in churches belonging to exempt reli¬ 
gious; also hospitals and orphanages and schools which 
are maintained, even by exempt religious, as parish or 
elementary schools. 

High schools and colleges conducted by exempt reli¬ 
gious are liable to canonical visitation by the Ordinary 
only in so far as religious and moral training is con¬ 
cerned. 

Cemeteries common to the faithful and exempt reli¬ 
gious are subject to episcopal visitation, whilst cemeteries 
exclusively reserved for exempt religious are not. 

(c) The things which the bishop should examine and 
inspect must be determined by the purpose of the can¬ 
onical visit, as outlined in the first clause of canon 343, 
§ 1, and mentioned in the Pontificate Romanum. The 
second point: “That he may know how the church is 
administered spiritually and temporally,” offers an op¬ 
portunity to investigate: 

(a) Whether the Blessed Sacrament is kept properly 
and in the right place; whether there is a sanctuary lamp; 
whether pyxis, monstrance, lunula, etc., are of the pre¬ 
scribed material, kept clean and free from verdigris; 
whether the sacred species are changed with sufficient 
frequency, etc. 

(/?) Whether the altars are made according to rubrics, 
and if images or statues are erected upon them, whether 
these are in conformity with the mind of the Church and 
in good taste, and especially whether any extraordinary 
images or representations disapproved by the Church are 
exposed for veneration. 

(y) Whether the baptismal font is properly and con¬ 
veniently kept and the holy oils can be easily found and 
are preserved in a decent place. 

(8) In the sacristy he should observe the neatness and 


THE DIOCESAN VISITATION 


3i 

color of the sacred vestments, the chalices and other sacred 
vessels. 

(0 The confessionals should be examined as to their 
grates, and also with regard to veils, stole and surplice, 
where these are prescribed, etc. 

We come now to what the Code says about exempt reli¬ 
gious. 

(1) Note that exemption from canonical, or rather 
episcopal, visitation is not comprised under the general 
concession of exemption, as has been more than once de¬ 
cided by the S. C. Rota, but is valid only if granted by a 
special concession of the Apostolic See, as canon 344, § 1 
clearly emphasizes. Wherefore no communicatio privi- 
legiorum may be invoked by exempt religious as to the 
canonical visitation. 

(2) However, as far as the exempt religious them¬ 
selves are concerned, the bishop is entitled to visit them 
only in cases expressly stated in the law. These cases, 
as far as the diocesan visitation is concerned, were partly 
mentioned above. They are: 

(a) The parish churches administered by exempt reli¬ 
gious, including the Blessed Sacrament altar, the taber¬ 
nacle, the baptismal font and holy oils, the confessionals, 
the pulpit, the sacristy, the belfry with the bells belong¬ 
ing to the parish, the cemetery, etc. 

(b) The oratories or chapels of confraternities whose 
members are lay or secular persons, although adminis¬ 
tered by exempt religious; 

(c) The schools conducted by exempt religious, except 
the secondary schools, which are subject to visitation only 
as far as religious and moral education is concerned; 

(d) Divine worship , whether it is carried out according 
to the sacred canons, and no superstitious practices are 


32 EPISCOPAL DUTIES AND PRIVILEGES 


tolerated in the churches and oratories of exempt reli¬ 
gious. 

Canon 345 lays down the mode of procedure when cor¬ 
rection of abuses becomes necessary. There are two pro¬ 
cedures, the paternal and the judiciary. The former con¬ 
sists in secretly admonishing the delinquent. This 
method may be employed towards the clergy as well as the 
laity. But it would not be paternal to threaten penalties 
in order to compel one to reveal crimes or transgressions, 
or to make a public admonition serve as a preliminary to 
criminal procedure. 

Much less in keeping with the bishop’s office as a 
father would be the infliction of ecclesiastical censures. 
Penances which have no judiciary character, e. g., a re¬ 
treat, would not exceed paternal correction. If the bishop 
proceeds paternally, no appeal is allowed, because no 
sentence has been given; recourse is permitted, but in de- 
volutivo only; that is to say, the correction must be ac¬ 
cepted and the injunctions carried out, until a superior 
judge reverses the sentence. 

Metropolitans should not accept any recourse against 
a bishop’s paternal procedure as long as the latter has 
remained within the limits prescribed by law. 

What are the aliae causae mentioned in canon 345? 
We presume they are such as do not fall directly under 
the objects of an episcopal visitation, epecially those which 
require a formal trial, e. g., the removal of a parish priest, 
the procedure against pastors refusing to comply with 
the law of residence, although a mere precept concerning 
that point would not exceed the paternal method; lastly, 
all criminal cases requiring trials. 

Can. 346 repeats the old and oft inculcated duty not 
to make the episcopal visitation disagreeable for those 


EPISCOPAL PRIVILEGES 


33 


concerned, and more especially establishes the remunera¬ 
tion allowed by law. The Code permits the procurationes 
and expenses of the journey. P»y procurationes are un¬ 
derstood food and lodging. No prescription is admissible 
against this lawful claim of the visiting bishop. However, 
those who have to furnish the procurationes may pay their 
equivalent in money. With the exception of this support 
and the expenses of the journey, neither the bishop nor 
his companions are allowed to demand or accept any gifts 
or donations. 


EPISCOPAL PRIVILEGES 

The term “privileges,” as applied to episcopal preroga¬ 
tives, is to be understood in the sense of distinctions 
or rights common to all bishops. In fact, even those 
favors which the Code styles privileges (can. 349) are, 
now-a-days more or less rights, because embodied in the 
common law, rather than privileges in the strict sense. 
Therefore, the use of the term “privileges” may be justly 
extended to other rights which the bishops enjoy in com¬ 
mon. 


PONTIFICAL FUNCTIONS 

i. Bishops may exercise pontifical functions in their re¬ 
spective territories, and within their diocese, even in ex¬ 
empt places. In order to perform such functions outside 
their dioceses, however, they need the express or at least 
reasonably presumed consent of the local Ordinary and 
of the religious superior if the church where they wish 
to pontificate belongs to an exempt order. Hence, if a 
bishop wishes to perform pontifical functions, say in a 
Benedictine church which is outside his own territory or 


34 EPISCOPAL DUTIES AND PRIVILEGES 


diocese, a twofold consent is required, viz .: that of the 
Ordinary and that of the religious superior. 

2. To exercise pontificals, says the Code, means to per¬ 
form such sacred functions as, according to liturgical 
rules, require the use of pontifical insignia, viz., crozier 
and mitre. The crozier (bacillus or pastoral stafif) 
signifies pastoral power and care, while the mitre indicates 
knowledge of both Testaments and protection against the 
enemies of faith and sound doctrine. 12 Why these two 
emblems are especially mentioned is thus explained in the 
Cacremonialc Episcoporum: Because the mitre and 
crozier go together. The crozier, says the same authority, 
is used by the bishop in his own diocese, and may be 
used in other dioceses only with the permission of the 
local Ordinary. The functions which require these in¬ 
signia are consecrations, ordinations, blessings, proces¬ 
sions, pontifical vespers and Mass (except “Requiem”). 13 
Crozier and mitre, then, are emblems indicative of pon¬ 
tifical rights, and consequently are limited in their use to 
the bishop’s own diocese, as episcopal rights are, in gen¬ 
eral, confined to their territory. Although the exercise 
of pontificals is legally limited to a bishop’s own diocese, 
yet, since all bishops enjoy the same right, it is but logical 
that the Code admits of presumed permission. Such may 
be supposed to exist if an outside bishop has been 
invited to give a lecture, or for some ecclesiastical func¬ 
tion, or if the local Ordinary is absent, and the vicar- 
general tendered the invitation. Furthermore, there 
would be a reasonable presumption if the local Ordinary 

12 See Thalhofer. Handbuch der katli. Liturgik, 1883, pp. 
892 ff.; Kraus, Geschichte der christl. Kunst, 1908, I, 533; II, 
498 ff. 

is Lib. I, cap. XVII, n. 8. 


PONTIFICAL FUNCTIONS 


35 

were known to be willing to give his consent in this 
matter. 

There is a recent decision of the S. C. of Rites 
which, to some extent, bears on this subject. A bishop, 
either residential or titular, is not allowed to celebrate 
Pontifical Mass or Vespers in the church of another 
bishop—the question arose in connection with the titular 
church of a Cardinal, i. e., in Rome—though he does 
not make use of the crozier or the throne, but only of 
the faldstool, without having consulted the diocesan 
Ordinary. 14 However, the Code is evidently more 
liberal. 

3. The bishop who grants permission to perform pon¬ 
tifical functions in his territory may also permit the use 
of throne and canopy. This sounds quite natural and 
logical, but the decree quoted in Card. Gasparri’s edition 
reminds us that there has been a controversy concerning 
this point. The decree of May 9 (resp. June 12), 1899, 
states that this question had been more than once asked 
in Rome and was formulated by the S. C. of Rites as 
follows: Has the diocesan bishop the right to cede the 
throne to another bishop together with the appropriate 
or usual assistance of the canons? The S. Congregation, 
having asked the opinion of the Liturgical Commission, 
and having carefully discussed and pondered the matter, 
answered: Affirmative, provided the guest (episcopus 
invitatus ) be not the diocesan bishop’s coadjutor or 
auxiliary, or his vicar-general, or a dignitary or canon of 
his own cathedral. As, however, the suburbicarian car¬ 
dinal bishops and other (titular) cardinals can grant the 
use of the throne only to cardinals, so is it becoming that 

14 S. Rit. C, Dec. 4, 1903 (Dec. Auth., n. 4124). 


36 EPISCOPAL DUTIES AND PRIVILEGES 


bishops of other dioceses who are cardinals, should cede 
their episcopal throne only to cardinals. 15 

This decree is still in force, 16 and therefore a bishop 
cannot cede his throne to his own coadjutor or auxiliary 
or vicar-general, or to any dignitary or canon of his own 
cathedral. The reason is evident: there is but one bishop 
in each diocese, and the throne is the expression of juris¬ 
diction. In order, therefore, to preclude any encroach¬ 
ment or detrimental custom, the law forbids the 
permission to be given to dignitaries of a bishop’s own 
cathedral or diocese. On the other hand, the sec¬ 
ond clause, viz., as to the comity or proportion between 
cardinals, is only directive, and may, therefore, be dis¬ 
pensed with for good reasons without recourse to the 
Holy See. 

Here we may conveniently add some remarks about 
the dignitaries who enjoy the use of pontificals. 

1. Cardinals are entitled to use pontificals with throne 
and canopy in all churches outside of Rome, but if 
they wish to pontificate in a cathedral church not their 
own, they must advise or inform the local Ordinary. 17 

2. Legates of the Holy See, if endowed with the episco¬ 
pal character, may perform pontifical functions in all 
churches without the permission of the local Ordinaries; 
only for the cathedral church they need the permission 
of the local Ordinary, which rule certainly must be under¬ 
stood according to can. 337, § 1, so that a presumed 
permission is sufficient. 18 

3. Metropolitans may perform pontifical functions in 

15 Dec. Auth., n. 4023. 

16 S. Rit. C., Nov. 26, 1919 (A. Ap. S., XII, l8o ? 182, V, 3). 

17 Can. 239, § 1, n. 15. 

18 Can. 269, § 3. 


PONTIFICAL FUNCTIONS 


37 


the churches of their suffragans without the special or 
presumed permission of the latter; but to exercise 
pontificals in the cathedral church of a suffragan the 
metropolitan must previously inform the suffragan. 19 

4. Coadjutor-bishops should, if not lawfully prevented, 
perform pontifical and other functions whenever they are 
asked by their bishop to do so. 20 However, since the de¬ 
cree of the S. Congr. of Rites, of June 12, 1899, is still 
in force, as stated above, the coadjutor has to abstain from 
the use of the throne, instead of which the faldstool is to 
be prepared for him. Besides, according to some older de¬ 
cisions, the use of the staff would be forbidden. 21 But, 
since crozier and mitre belong together, we cannot see how 
these decisions can be reconciled with the Caeremoniale 
Episcoporum. 

5. Abbots or prelates nullius, although not consecrated 
bishops, may perform pontifical functions with throne and 
canopy in their own territory. 22 

6. Governing abbots, after having received the pre¬ 
scribed abbatial blessing, may perform pontifical func¬ 
tions, like abbots nullius, i. e., in their own territory (only 
the purple skullcap is excluded). 23 The number of pon¬ 
tifical functions is no longer restricted, as it was by the 
well-known decree of Alexander VII, Sept. 27, 1659. 
But another question arises: Can an abbot exercise pon¬ 
tifical functions in other places? First and above all it 
must be remembered that these abbots are not nullius, and 
hence the term “in their own territory” must be converted 

19 Can. 274, n. 6. 

20 Can. 351, § 4. 

21 See our Commentary, Vol II, p. 381.—It is but fair to add 
that a lawful custom may upset the rule stated above. 

22 Can. 325. 

23 Can. 625. 


38 EPISCOPAL DUTIES AND PRIVILEGES 


into an equivalent one. This can only mean their own 
church or churches. This is exactly the meaning of a 
decision of the S. Rit. C., in which these words occur: 
“in suis tantum ecclesiis aut pleno hire subiectis.” 24 A 
similar expression is found in a later decision : “vel ceteras 
eiusdem institati ecclesias” 25 Hence, an abbot may pon¬ 
tificate in all churches incorporated, according to can. 
453, § i, with his monastery. However, if he wishes to 
pontificate in such an incorporated church in another dio¬ 
cese than the one in which his monastery is located, it 
seems but proper that, according to can. 337, § 1, he 
should have the express or presumed permission of the 
local Ordinary. 

Another question is: May the bishop grant permission 
to an abbot to pontificate in a church not incorporated 
pleno hire with the monastery of said abbot? The answer 
has been given more than once by the S. Congregation of 
Rites. Thus in a case concerning Bahia of Brazil, it was 
decided: " negative in omnibus sine speciali A post otic 0 in- 
dulto.” 26 The consequence is that, unless a privilege, or 
an indult, or a legitimate custom can be produced, abbots 
are not allowed to pontificate in any other church except 
their own. A privilege of a general nature to this effect 
is unknown to us, and as far as we were able to ascertain, 27 
no such privilege was granted after the famous decree of 
Alexander VII, in 1659. As to indults, it is out of our 
reach to ascertain them. Hence custom remains. And 

24 S. Rit. C., July 11, 1739 {Dec. Auth., n. 2348). 

25 S. Rit. C., May 23, 1846 {Dec. Auth., n. 2907). 

26 S. Rit. C., May 23, 1846, ad 3 {Dec. Auth., n. 2907) ; also 

O. S. B. at Barcelona, July 11, 1739 {Dec. Auth., n. 2348). 

27 Molitor, De Privileges, 1917, p. 17, n. 27, stretches the 
privileges really granted, or misquotes, for instance, S. Rit. C., 
Dec. 18, 1846 {Dec. Auth., n. 2923), which plainly states what 
we say above. 


PRECEDENCE 


39 


this, at least in our country and in Switzerland, seems to 
testify, if not juridically, at least practically, to the ob¬ 
servance that abbots, if invited by bishops into their dio¬ 
cese, may perform pontifical functions there. 

A last question is: Does the above mentioned decree 
of the S. Congregation of Rites, of June 12, 1899, apply 
to coadjutor-abbots? That is: May these use the throne 
of the abbot? There is some analogy between abbots and 
bishops, and can. 351, § 1, may undoubtedly be referred 
also to coadjutor-abbots. This text states that their power 
must be interpreted according to their letters of appoint- 
ment. But here the analogy stops. If a coadjutor is 
appointed with full power in spiritual and temporal mat¬ 
ters, while the coadiutus only retains title and precedence, 
there can be no analogy between a coadjutor-bishop and 
a coadjutor-abbot. Hence the coadjutor-abbot is entitled 
to all the insignia and rights of an abbot without excep¬ 
tion. Of course, if the coadiutus wishes to pontificate, 
he has the first right; but otherwise the coadjutor may 
use the throne even in the presence of the coadiutus. 

PRECEDENCE 

(Can. 347) 

Precedence is a relative term, and the right to precede 
over others is based on power, either of jurisdiction or of 
order. But jurisdiction is the determinant of the various 
degrees. Therefore, the greater the power, the greater 
the distance from those subject to that power. From this 
explanation it may be seen that precedence does not 
mean “foremost” in an order or series of persons. 
Rather might the Gospel saying be applied: “The first 
shall be last.” The more persons precede or walk before 
one, the more distinguished shall the latter appear. 


40 EPISCOPAL DUTIES AND PRIVILEGES 


This is the meaning of the 33d title of the Decretals of 
Gregory IX: Dc maioritate ct obedientia. Those who 
govern must be obeyed and honored by those who are 
governed; and since the spiritual power is more sublime 
than the temporal power, it is becoming that spiritual 
rulers should not be treated like “footstools” by the 
temporal rulers. 28 It also follows that the inferior clergy 
should manifest their duty of obedience towards their 
superiors by keeping their rank and order. Order and 
discipline are required, not only in monarchies, but also 
in democratic commonwealths. At the same time empty 
pomp and show, even on religious occasions, border on 
Pharisaism. 

Here may be inserted what the Code establishes con¬ 
cerning precedence among Ordinaries: 

1. Cardinals precede all prelates, even patriarchs and 
papal legates, unless the legate be a cardinal resident in 
his own territory. A Cardinal a latere, however, outside 
of Rome, precedes all others (can. 239, § 1, n. 21). 

2. Patriarchs enjoy precedence over primates, arch¬ 
bishops, and bishops, but not in the latter’s own territory, 
archdiocese or diocese (can. 280, compared with can. 347). 

3. Metropolitans, or archbishops, have precedence 
over bishops and their suffragans even in the latter’s own 
dioceses (ibid.). 

4. Bishops, in their own dioceses, have precedence over 
archbishops and bishops, except cardinals, papal legates, 
and their own metropolitan. Outside of their diocese, 
precedence is to be settled according to the time of pro¬ 
motion made in public consistory, so that among bishops 
the one who has been promoted earlier to the episcopal 
rank precedes the one whose promotion occurred later. 
If, perchance, two were published the same day, the one 

28 Innocent III to the Eastern Emperor, c. 6, X, I, 33. 


PRECEDENCE 


4 i 


who has been ordained priest earlier, precedes the other; 
and if the dates of ordination coincide, the natural age 
decides (can. 106). Diversity of rites constitutes no 
difference. 

5. Papal legates, though they may not be endowed 
with the episcopal character, precede all Ordinaries who 
are not cardinals (can. 269, § 2). 

6. The vicar-general has precedence over the whole 
clergy of the diocese on public and private occasions, 
even if the bishop is present, and over all dignitaries and 
cathedral canons in choir as well as in chapter meetings, 
unless there is a clergyman endowed with episcopal 
character, and the vicar-general lacks that character. Nor 
does it make any difference whether the vicar-general is 
a religious, for the wording of the text is general (can. 

370, § 1). 

7. The vicar-capitular, or administrator, during the 
vacancy of the episcopal see, enjoys the same right of 
precedence as the vicar-general (can. 439). 

8. Apostolic administrators, if permanently appointed 
by the Holy See, enjoy the same rights as residential 
bishops; if they are appointed only for a time {ad 
tempus), they enjoy the same rights as vicars capitular 
(can. 315). 

9. Abbots or prelates nullius, if not consecrated, enjoy 
in their own diocese the right of precedence like resi¬ 
dential bishops. Outside their diocese, it appears that 
they should cede to every bishop, either residential or 
titular, and therefore take their place immediately after 
the bishop, but before the vicar-general or vicar-capitular. 

10. Regular prelates must follow the rules laid down 
in can. 491 concerning precedence among religious. 
Hence, first come the prelates of canons regular, then 
those of monastic bodies, and then those of other clerical 


42 EPISCOPAL DUTIES AND PRIVILEGES 


regulars. With respect to the secular clergy, a cathedral 
or collegiate chapter, when present as a body, precedes 
all religious, even prelates and abbots, everywhere. But 
individual canons do not precede these prelates, unless 
they are titular bishops. 29 


PERSONAL PRIVILEGES OF BISHOPS 

(Can. 349) 

We call the following favors personal privileges because 
they are attached to the office of a bishop, and hence are 
not communicable to others. 30 They may, therefore, also 
be termed official prerogatives. Our canon has two sec¬ 
tions, of which the first mentions the privileges common 
to all bishops, residential and titular. The date from 
which the enjoyment of these prerogatives begins is 
the moment in which they have received authentic in¬ 
formation of their appointment. Authentic is the in¬ 
formation which is issued by the competent authority. 
This is the S. Congregatio Consistorialis, which, how¬ 
ever, dispatches the document, either bull or brief, 
through the Secretariate of State or the Apostolic 
Chancery. Until this document is in the hands of the 
appointee, he cannot make use of these privileges, even 
though he may have been informally apprized of his 
appointment. Only in case the Secretariate of State (of 
the Vatican) should send an official dispatch, would the 
notice be authentic, and the appointee be entitled to the 

29 See Vol. Ill of our Commentary, pp. 62 ff. In the Decreta 
Auth. S. C. Rit. we could find only one decision, which, how¬ 
ever, refers to a very particular case. 

30 S. Poenit., July 18, 1919 (A. Ap. S., XI, 332), at least not 
habitually. 


PERSONAL PRIVILEGES 


43 


use of these privileges. 81 This section (§ i) does not 
enumerate all the privileges, or rather rights, which 
bishops enjoy; others are mentioned under the respective 
headings. Quite a few favors bishops have in common 
with the cardinals. And since these latter may, at the 
same time, be residential bishops, it is not out of place 
to set forth the full list, pointing out distinctly those 
which all bishops enjoy. 

Cardinals enjoy the following privileges (can. 239) : 

1. To hear confessions everywhere in the world, also 
those of religious of both sexes, and to absolve the peni¬ 
tents from all, including reserved sins and censures, with 
the exception of the four cases most especially reserved 
to the Apostolic See, and cases arising from the violation 
of the secret of the Holy Office. 32 

2. * To select for themselves and their familiares 33 a 
confessor who, by this very choice, obtains jurisdiction 
which he might otherwise not have, and may absolve from 
sins and censures as stated under the preceding number. 
The confessor of bishops may also absolve from cases 
reserved to the bishop (can. 349, § 1, i°). 

3. * To preach the Word of God everywhere; but bish¬ 
ops should have the (at least presumed) consent of the lo¬ 
cal Ordinary. This presumption is supposed if the latter 
does not object. 

4. * To celebrate, or permit another to celebrate in 
their presence, one Mass on Holy Thursday and three 
Masses on Christmas night. Here can. 349 inserts the 
clause, “provided the bishops are not obliged to celebrate 

31 S. O., Aug. 24, 1892 (Coll. Prop . Fid., n. 1810). 

32 This secret is imposed on the employees of the Holy Office 
and the S. C. Consistorialis; A. Ap. S., I, 82. 

33 Familiares are those waiting on these prelates and depend¬ 
ing on them for a livelihood or remuneration. 


44 EPISCOPAL DUTIES AND PRIVILEGES 


in the cathedral.” If the holy oils are to be blessed—* 
which is usually the case—bishops cannot make use of 
this privilege. But if sickness or some other weighty 
reason should prevent them from blessing the oils, the 
privilege may be applied. 

5. * To bless everywhere, by the sign of the Cross, and 
thereby to attach all the usual Apostolic indulgences to, 
beads and other kinds of rosaries, crosses, medals, stat¬ 
ues, and scapulars approved by the Apostolic See, and 
to impose the scapulars on all without obligation of en¬ 
rollment. Can. 349 adds for bishops the obligatory 
clause: “however, with the observance of the rites pre¬ 
scribed by the Church.” Therefore, the sign of the 
Cross alone is not sufficient in case a bishop wishes to 
make use of this privilege; he has to employ the formulas 
of the Roman Ritual for the respective articles. 34 

6. * To erect, with one blessing, the Stations of the 
Cross in churches and oratories, including private orato¬ 
ries and chapels of pious institutions, and to attach the 
indulgences granted to the pious exercise of this devotion; 
also to bless sacred images for the use of those of the 
faithful who are prevented either by sickness or some 
other lawful obstacle from making the Stations of the 
Cross, and to attach all the indulgences granted by the 
Roman Pontiffs for the devotion of the Way of the 
Cross. Here, too, can. 349 adds the condition that 
bishops use the prescribed rites. 

7. * To say Mass on a portable altar, not only in their 
own residence, but wherever they may be; and also to 
permit another Mass to be said in their presence. 

8. * To say Mass at sea, with the usual precautions, 
namely, that the sea be calm and the ship not rolling, 

34 See, however, Formulary III, of March 17, 1922, V, nn. 

6, 7 , 11. 


PERSONAL PRIVILEGES 


45 


that it be far from the coast, and another priest or deacon 
be present to hold the chalice in case of great agitation 
of the ship. 

9. * To say Mass in all churches and oratories—hence 
also of exempt religious—according to their own calendar 
or directory. 

10. * To enjoy the favor of a privileged altar daily. 

11. * To gain, in their own chapels, all the indulgences 
for which is prescribed a visit of a church or public 
oratory of a city or place where cardinals happen to be; 
this privilege is extended to their familiares. 

12. * To bless the people everywhere; but in Rome this 
blessing may be imparted only in churches, pious in¬ 
stitutes, and assemblies of the faithful. 

13. To wear the pectoral cross over the mozzetta and 
to use the mitre and the crozier. 

14. To say Mass in any private oratory without prej¬ 
udice to the grantee of the privilege. 

15. To exercise pontifical functions with throne and 
canopy in all—including exempt—churches outside of 
Rome; but in cathedral churches only after the local 
Ordinary has been informed. Cardinals may also have 
deacons of honor everywhere except in Rome. ( Ephe - 
merides Liturgicae, Sept., 1923, page 363). 

16. To enjoy the honors usually shown to local Or¬ 
dinaries. 

17. To attest or authenticate in the external forum, 
privileges orally granted by the Pope. 

18. To have a private oratory exempt from the canon¬ 
ical visit of the local Ordinary. 

19. To dispose of the revenues of their benefices, even 
by last will, with due regard, however, to can. 1298. 

20. To perform consecrations and bless churches, 
altars, sacred vessels, abbots, etc., excepting, however, 


46 EPISCOPAL DUTIES AND PRIVILEGES 


the blessing of holy oils if the cardinal has not received 
episcopal consecration; but they have to make use of the 
rites prescribed and, besides, obtain the consent of the 
local Ordinary. 

21. To precede all other prelates, as stated above. 

22. To confer tonsure and minor orders, provided the 
candidate has dimissorial letters from his Ordinary. 

23. To administer confirmation, which they must have 
properly recorded (can. 798 f.). 

24. To grant an indulgence of 200 days, also toties 
quoties, to institutions and persons under their jurisdic¬ 
tion or protection; also to be gained in other places, but 
only by those actually present. 

The privileges enumerated under n. 2 to 12, with due 
regard to the clauses inserted, are shared by all bishops, 
residential as well as titular. 

Furthermore, the bishops just mentioned are allowed 
to wear the episcopal insignia, the use of which is reg¬ 
ulated by liturgical rules, partly found in the Caere - 
moniale Episcoporum. 

The episcopal insignia are: the mitre, the crozier or 
pastoral staff, the pectoral cross, the pontifical ring, dal¬ 
matics and tunicella, gloves and sandals. Leo XIII 
added the skullcap of violet color for all. 35 The crozier 
is the oldest and most significant episcopal ornament, in 
use since the fifth century, whilst the mitre ( taenia=& 
priestly band) dates only from the tenth century, but is 
mentioned in several papal letters and in the Decretals. 
The residential bishop’s name must be mentioned in the 
canon of the Mass. 

These privileges are enjoyed by all bishops from the 
time they are authentically informed of their appoint- 

25 ii Praeclaro; i Feb., 1888. 


PERSONAL PRIVILEGES 


47 

ment, even though not yet consecrated or in actual 
possession of their diocese. 

The second section refers only to residential bishops, 
to the exclusion of titular bishops, and restricts the rights 
mentioned to the terminus a quo, or date from which they 
have taken lawful possession of their diocese, according 
to can. 334. From this time on, though perhaps not yet 
consecrated, residential bishops enjoy the following 
rights: 

1. To receive the revenues of the episcopal mensa, or 
the reditus mensae episcopalis. The revenues or property 
of each church or diocese were divided into four or 
three parts, one of which was reserved for the sup¬ 
port of the bishop, who generally lived with his clergy 
in one residence. As long as the vita canonica, or life in 
common, was observed, the bishop and the cathedral 
clergy were supported from the common funds, mostly 
consisting of real estate, from which tithes and revenues, 
natural products and money were raised. After the 
canonical life was abolished, in the Xlth century, there 
were two mensae, one for the capitulars and another for 
the bishop, who administered it by means of a vicedomi- 
nus . 36 All this, of course, presupposes a real endow¬ 
ment. After the secularization of 1803, these moneys 
were paid in part by the governments, some of which 
still have this duty incumbent on them. In the U. S. the 
Church had no other revenues than the free donations or 
oblations of the faithful. Therefore a means was re¬ 
sorted to, which is certainly not in keeping with 
Canon Law, viz., the cathedraticum, which appears to 
take the place of the mensa or episcopal revenues. Al¬ 
though this is not a canonical means of supporting the 

36 See Kirchenlexikon, ed. II, Vol. VIII, 1262, 


48 EPISCOPAL DUTIES AND PRIVILEGES 


bishop, yet it is at present the only one available. There¬ 
fore, we may as well call the mensa episcopalis the cathe- 
draticum which is paid by all those who are obliged 
thereto (see can. 1505). 

2. Bishops are, furthermore, entitled to grant an in¬ 
dulgence of 50 days in places subject to their jurisdiction. 
This indulgence may also be gained by exempt religious. 

3. Lastly, bishops may erect a throne with a canopy 
in all, even the exempt, churches of their diocese. 

Whether all these privileges may also be claimed by 
abbots or prelates nullius seems doubtful, especially 
since can. 323 only mentions the “same ordinary powers 
and the same obligations,” without any reference to 
episcopal privileges. Nor is can. 215, § 2 against this 
interpretation. For the nature of the office (natura rei ) 
appears to distinguish substantially between one endowed 
with the episcopal character and one not so endowed. 
Besides, since stress is laid in can. 349, § 1 on the epis¬ 
copal character, because even titular bishops enjoy the 
privileges there mentioned, it is but logical to exclude 
those who are not bishops. 37 This is our personal view, 
which we state remissive. 


37 Blat, /. c., p. 376. 


PART III 


THE LEGISLATIVE AND ADMINISTRATIVE 
POWER OF BISHOPS 

Bishops, says can. 334, § 1, are the ordinary and imme¬ 
diate pastors in the dioceses entrusted to their care, be¬ 
cause their power accrues to them in virtue of the epis¬ 
copal office, not by mere delegation. What the term 
immediate, taken from the decrees of the Vatican Coun¬ 
cil, 1 means is to be determined by the bishop’s dependence 
upon the supreme authority of the Church on the one 
hand, and by his independence of any secular or clerical 
power on the other. Pius X complained against the il¬ 
legal procedure of the government of Portugal, which 
tried to separate clergy and people from the centre of 
ecclesiastical unity and to subject them to its own power. 2 
The episcopal power, though it may be offered by elec¬ 
tors or patrons, is not conferred by them, but by the 
Sovereign Pontiff, and is attached to the office. Imme¬ 
diate in the truest sense would mean that the episcopal 
power is the result of consecration. But it is hardly 
probable that the Code intends to settle a controversy 
which has been debated for so long a time and with such 
an excess of zeal by canonists. Probably the term here 
only means that, aside from papal interposition, no other 
power on earth shares in the bestowal of the episcopal 
jurisdiction. 

With regard to his inferiors, the bishop of a diocese 
is their free and independent judge, and not responsible 

1 Sess. IV, c. 3 

2 “Jamdudum” May 24, 1911 (A. Ap. S., Ill, 217 ff.) 

49 


50 


POWER OF BISHOPS 


to them, but subject only to the supreme lawgiver and the 
common law of the Church. 

Since the Church is a monarchical society, whose su¬ 
preme and independent head is the Roman Pontiff, who 
is endowed with full and sovereign power over the entire 
Church, 3 it logically follows that the bishops rule their 
districts under the authority of the Roman Pontiff. It 
is he who assigns the territory, and he is the first and 
last judge concerning the persons of bishops and their ad¬ 
ministration. The Pope is entitled to withdraw from 
the jurisdiction of bishops certain persons and things, 
and reserve these to his own judgment. Therefore it 
would be schismatic and subversive of the hierarchical 
order to maintain that a bishop can do in his diocese 
what the Pope can do in the universal Church (“episco- 
pus potest in sua dioeccsi, quod papa in tota ecclesia”). 
This, in fact, although not in words, was the doctrine 
proposed by the Febronian Synod of Pistoja, and justly 
condemned by Pius VI. 4 

The power of bishops is, therefore, locally circum¬ 
scribed, it may and is restricted by exemptions and re¬ 
servations, and determined by the common law, i. e., the 
Code. It is, then, proper to point out briefly the local 
organization which, though a merely human element, 
more or less based on politico-historical conditions, is 
a fact which determines the jurisdiction of bishops. 

SECTION I 

Representatives of the Hierarchy 

A few historical remarks will help to understand the 
origin and development of dioceses, patriarchates, and 

3 See can. 218. 

4 Propp. 6-8, Denzinger-Bannwart’s Enchiridion, nn. 1506- 

1508- 


ORIGIN OF DIOCESES 


5i 


archbishoprics. The first epoch was marked by itinerant 
preachers and ministers. When it had passed, the local 
organization alone remained. This extended from cities 
to suburbs, which are of widely different proportions, 
but the center of gravitation was the city, where the 
bishop dwelt. It was generally held that each city should 
have its bishop with his own clergy. That these several 
bishoprics or churches formed an ecclesiastical province 
similar to the political provinces, cannot be proved for 
the first three centuries. Neither did the existing promi¬ 
nent churches imitate the civil divisions, except in so far 
as there was a geographical connection between them. 
It was natural that Rome should be looked upon as the 
center of Christendom, as it was not only the capital of 
the Orbis Romanus, but also the place hallowed by the 
two chief Apostles and consecrated by their martyrdom. 
Thus the successors of St. Peter were already in the 
first three centuries the acknowledged metropolitans of the 
West, which first comprised the Italian peninsula, later. 
Western Illyricum with Gaul, and still later, the Spanish 
provinces. The Nicene Council (325), comparing Rome 
with the sees of Alexandria and Antioch, referred to the 
metropolitan organization of the former as an established 
fact. Alexandria and Antioch in the East retained for 
centuries their influence over the districts which had been 
allotted to them. In the reign of Theodosius I (379- 
395), the civil provinces of the Orient (Pontus, Asia, 
Thrace, and Egypt) had their ecclesiastical heads, who 
were later (in the fifth century) called patriarchs: the 
Orient with Antioch, Alexandria with Egypt, and Pontus, 
Asia, and Thrace under the newly established metro¬ 
politan of Constantinople, who, as occupant of the see 
of “New Rome,” claimed the right of consecrating the 
bishops of these three provinces,— i. e., jurisdictional, 


POWER OF BISHOPS 


52 

hierarchic power over them. Thus the exarchs or metro¬ 
politans of Heraclea in Thrace, Ephesus in Asia, 
and Caesarea of Pontus dwindled to lower rank, 
whilst Jerusalem, under the intriguing Juvenal, after the 
council of Chalcedon rose to the rank of a patriarchate, 
until Islam invaded the East. In the West, if we except 
Milan, Aquileja, and Ravenna, we hear but little of 
metropolitans. Spain and Gaul show few traces of or¬ 
ganization, with the sole exception of the Vicariate of 
Arles, founded by Pope Zosimus (417-418), which, how¬ 
ever, proved a failure. 5 

More effective was the organization introduced by St. 
Boniface, the “Apostle of Germany,” who acted strictly 
according to instructions received from Rome. A favor¬ 
ite theme of Pseudo-Isidore was the introduction of Pri¬ 
mates, who are mentioned as early as the fifth century, 
assuming that they are identical with the vicars of the 
Apostolic See. Thus, besides Arles, a vicar was created 
at Thessalonica, and St. Boniface, as metropolitan of 
Mayence, was Primate of Germany. Later on the Pri¬ 
mate of Hungary succeeded in upholding that title. In 
England, as we know from the history of the conver¬ 
sion of that country, St. Gregory intended to erect two 
provinces. Pope Nicholas I amalgamated the see of 
Bremen with the archbishopric of Hamburg. From the 
eleventh century onward the erection of bishoprics was 
reserved to the Holy See, so that not even papal legates 
were allowed to make a change in the territorial status 
of dioceses. 

The erection and delimitation of new dioceses was gen¬ 
erally effected in forma bullae, or by a document called 
“bull of circumscription.” 

6 Duchesne (tr. by McClure), Christian Worship, 1903, pp. 
14 ff. 


DELIMITATION OF DIOCESES 


53 


In countries which maintained diplomatic relations with 
the Holy See, the civil government cooperated in the act 
of circumscription as well as in carrying the same 
into effect. Where, however, there was complete separa¬ 
tion between Church and State, the Holy See established 
or reestablished dioceses by papal bull. Thus Gregory 
XVI, by his Constitution “Benedictus Dens/’ of July 17, 
1834, determined the boundaries of several dioceses and 
Pius IX, Jan. 24, 1868, increased the number of dioceses 
in the United States. By the bull “Universalis Eccle- 
siae/ f of Oct. 1, 1850, Pius IX reestablished the hierarchy 
in England. The whole business of erecting and changing 
the boundaries of dioceses now lies with the S. C. Con- 
sistorialis. 6 

The Code (can. 215-217) insists upon strict organiza¬ 
tion of dioceses, with due regard to the distinction be¬ 
tween dioceses proper and vicariates. For the latter § 2 
makes allowance, “ubi commode fieri potest ” But the dis- 

6 See can. 248, § 2. This division concerns the inhabitants as 
well as the territory; for the limits are the material, the sub¬ 
jects the formal element of the division. Thus the Code dis¬ 
tinguishes between subditi and non-subditi by reason of domicile 
or quasi-domicile. Here a practical case: St. John’s parish be¬ 
longs to the diocese of C.; the neighboring St. Peter’s parish 
belongs to the diocese of W. Some parishioners of St. Peter’s 
parish, encouraged therein by the pastor of St. John’s, claim 
membership in this latter parish, because they spend some Sun¬ 
days in St. John’s parish, where they possess some kind of a 
“shack,” but really have all their property and their actual 
home in St. Peter’s parish; in fact, juridically speaking, they 
have neither domicile nor quasi-domicile in St. John’s parish— 
consequently they are subjects of the Ordinary of the diocese 
of W 

Question: Can the bishop of the diocese of W. and St. 
Peter’s parish claim these recalcitrant—for such they are— 
parishioners? 


54 


POWER OF BISHOPS 


tribution of dioceses into parishes must be enforced. 
For our country the passage referring to parishes of dif¬ 
ferent languages is important, because in future none but 
English-speaking parishes can be erected without a spe¬ 
cial Apostolic indult. This law does away with in¬ 
conveniences arising from uncertain boundaries and puts 
the division on the basis of territory, which alone should 
be considered for administrative purposes. But as it 
would cause difficulties to carry out the law at once, the 
Code moderates the law as to the existing parishes. Par¬ 
ishes for a certain number or class of families, especially 
of the nobility, such as exist in Spain, are unknown in 
America. 

The Code, with some restrictions, also insinuates the 
erection of rural deaneries. The scope of this provision 
is apparent from can. 131, which urges conferences of 
the clergy of each rural district, as also from cc. 445 flf., 
which define the duty of deans to watch over the clergy 
of their districts. 

Under the name of diocese the Code comprises also an 
abbey or prelature nullius; and by the name of bishop it 
understands also an abbot or prelate nullius, unless the 
nature of the matter or the context requires a different in¬ 
terpretation. The territory of each diocese should be 

Answer: Undoubtedly he can, and should claim them, because 
the law is on his side. If he does not, he acts against the 
best interests of St. Peter’s parish and allows confusion to 
enter and, besides, acts against the Code, which reserves division 
to the Apostolic See. The Ordinary of the diocese of C. must 
energetically insist that St. John’s pastor shall not draw or en¬ 
courage parishioners of St. Peter’s to come to his church. 
Bishops are not entitled to bargain in this matter, unless we 
assume that boundaries are only a plus minusve determined line 
subject to the good pleasure of people, pastors, bishops. But 
then justice, the foundation of peace, will give way to mere 
fancy and strife will result. 


METROPOLITANS 


55 


distributed into districts, and a special church assigned to 
each of these with a determined part of the flock, headed 
by a local pastor, who shall take care of souls. 

Apostolic vicariates and prefectures should be divided 
in a similar manner, wherever possible. 

The minor divisions of a diocese mentioned in § i are 
called parishes; the minor divisions of a vicariate or pre¬ 
fecture, if they have their own rectors, are called quasi¬ 
parishes. 

Henceforward no parishes are to be established for 
faithful of diverse languages or nationalities in the same 
city or territory without a special Apostolic indult. In 
regard to already existing parishes, nothing is to be 
changed without the advice of the Holy See. 

Every bishop is to divide his territory into districts, 
each comprising several parishes, to go by the name of 
forane vicariates, deaneries, archpresbyteries, etc. Where 
such a division is impossible or infeasible by reason of 
special circumstances, the bishop should consult the Holy 
See, unless the latter has already made provision. 

PATRIARCHS, PRIMATES, METROPOLITANS 

The different degrees here mentioned owe their existence 
to local organization, and consequently to merely eccle¬ 
siastical, not to divine, law. Their significance is now 
much reduced. 

Metropolitans are bishops who rule over a province 
composed of several bishoprics. However, under the 
present legislation, the term “rule” must be taken in a 
very restricted sense. In ancient times the power of 
metropolitans was more extensive, especially in regard to 
the election and ordination of provincial bishops, the 
convocation of synods, and trials of the higher and lower 


56 


POWER OF BISHOPS 


clergy. This was but natural, since the metropolis was 
considered the mother see and center of the whole ecclesi¬ 
astical organism. However, in course of time the author¬ 
ity of the metropolitans was diminished and went to the 
general center, Rome. Metropolitans are also called arch¬ 
bishops, though these terms are not entirely synonymous; 
for every metropolitan is an archbishop, but not every 
archbishop is a metropolitan (e.g., the Archbishop of 
Ferrara). The title may be merely an honorary distinc¬ 
tion. Every metropolitan has one or more suffragans, 
called thus since the eighth century. In the Frankish 
Kingdom and in Italy, especially at Ravenna, the tend¬ 
ency early manifested itself to diminish the number of 
metropolitan sees and augment the prerogatives of the 
remaining archbishops, in order that they might appear 
as primates. These primates were mostly the nominees 
of temporal rulers. The abuses of this system were so 
flagrant that the papacy set to work to arrest the exten¬ 
sion of metropolitan powers and to prevent the creation of 
primatial sees, and, generally, opposed the growth of tend¬ 
encies which threatened to lead to the establishment of 
national churches. 

The title Patriarch or Primate is purely a title of honor 
and, aside from the right of precedence (can. 280), carries 
with it no special jurisdiction, except where particular 
laws exist to the contrary. 

Our remark concerning the tendencies of certain bish¬ 
ops of France is corroborated by the canon quoted by 
Cardinal Gasparri in his edition. Rudolf, Archbishop 
of Bourges, claimed patriarchial rights; but Pope Nicholas 
I told him that, except where the canons and legitimate 
custom permit, patriarchs and primates have no power 
over other bishops, unless the Apostolic See has honored 


METROPOLITANS 


57 


a church by special privileges. Innocent III gave the 
same answer to an archbishop of Tours. 7 To-day, if we 
mistake not, only the Archbishop of Gran (Eztergom) in 
Hungary enjoys any noteworthy prerogatives. 

Over each ecclesiastical province presides a Metropoli¬ 
tan or Archbishop, and the connection of that dignity 
with an episcopal see must be determined or approved by 
the Roman Pontiff. 

The erection of provinces, like that of dioceses, is a 
causa maior, reserved to the Holy See 8 (S. C. Consist). 

Besides the obligations and rights mentioned in can. 
275-280, a metropolitan is bound in his own diocese by 
the same duties as a bishop in his, and enjoys the same 
rights. 

The rights of a metropolitan over the diocese of his 
suffragans are stated in the Code (can. 274) as follows: 

1) If the suffragan delays investiture beyond two 
months, the right of investing is granted to the metropoli¬ 
tan, supposing, of course, that the candidate is fit. It may 
be observed that the Code mentions only benefices of the 
iuspatronatus, which are of no importance for the metro¬ 
politans of our country. 

2) To grant an indulgence of 100 days, as in his own 
diocese. 

3) Should the chapter (our board of diocesan consult- 
ors) for any reason neglect to designate a vicar-capitular 
or oeconomus within the prescribed time, the right of 
making this appointment devolves on the metropolitan; 
if the vacant see is a metropolitan see or if the metro¬ 
politan see is vacant simultaneously with a suffragan see, 
the right of appointment passes to the senior suffragan. 

7 See c. 6, X, I, 31. 
j 8 Can. 215 ; can. 248, § 2. 



POWER OF BISHOPS 


58 

4) To watch over the purity of faith and ecclesiastical 
discipline, and to inform the Roman Pontiff of eventual 
abuses. 

5) To hold the canonical visitation, in case the suffra¬ 
gan neglects it; but the cause must be previously approved 
by Rome. 

As soon as the visitation is ratified by competent au¬ 
thority, and the metropolitan enters the diocese of his 
suffragan, his jurisdiction becomes as it were ordinary 
over the subjects of his suffragan, but not over the suffra¬ 
gan himself. Hence, (a) he may preach the word of God 
without asking the suffragan and (b) he may exercise acts 
of jurisdiction in as well as outside of the confessional. 
To this latter faculty must be referred the investigation of 
the life and conduct of the clergy and the exercise of con¬ 
tentious jurisdiction. Coercive power may be exercised 
by the metropolitan against infamous clergymen, for 
notorious crimes which cannot be concealed, especially if 
the culprit has been tried by a civil or ecclesiastical court. 
Finally, the metropolitan may proceed against such as 
offer affronts or insults to his person or suite or who pre¬ 
vent the exercise of his jurisdiction during the time of 
the canonical visitation. 

6) To receive appeals from a definitive sentence, or an 
interlocutory sentence which has definitive effect given by 
the suffragan’s court; see can. 1594, § 1. 

7) To decide, in the first instance, controversies con¬ 
cerning rights and property of the suffragans; can. 1572, 
§ 2. 


THE PALLIUM 


The origin of the pallium is involved in obscurity. It 
seems to be an imitation of the wiio<f> 6 piov, a band of wool 


THE PALLIUM 


59 


worn at Mass by Oriental bishops. This ornament was 
in use also in Gaul and Africa. As a special sign of 
distinction the pallium came into general vogue after the 
sixth century. In its modern form it is a circular band, 
about two inches wide, worn around the neck, breast, and 
shoulders, with two pendants, one hanging down in front, 
the other behind. It is set with six black crosses of silk, 
one each on the breast and back, one on each shoulder, and 
one on each pendant. It is worn over the chasuble and 
signifies the plenitude of the pastoral and episcopal power 
which an archbishop has received from the Pope. The 
pallia are kept in a capsula over the tomb of St. Peter, and 
hence are said to be “taken from the body of St. Peter,” 
after being blessed by the Supreme Pontiff on the eve of 
the feast of SS. Peter and Paul. 9 

The metropolitan is obliged, either in person or by 
proxy, to ask the Pope for the pallium within three months 
from the date of his consecration, or, if he is already con¬ 
secrated, from the time of his canonical promotion in 
consistory. 

Acts of metropolitan jurisdiction or of the episcopal 
order which require the use of the pallium, according to 
liturgical norms, are illicit if performed before the impo¬ 
sition of the pallium. 

The metropolitan may use the pallium in every church 
of his province on the days determined in the Pontificate 
Romanum, or on other occasions specially granted to him; 
but he may not use it outside his province, even though 
the local Ordinary consents. 

If a metropolitan loses his pallium, or is transferred 
to a different archiepiscopal see, he must obtain another. 

The pallium can be neither lent, nor given away, nor 

9 See our Commentary, Vol. II, pp. 292 ff. 



6o 


POWER OF BISHOPS 


left to anyone after death, but all pallia received by a 
metropolitan must be buried with him. Archbishops 
who are metropolitans, or who hold that title, must de¬ 
mand the pallium instanter, instantius, instantissime. 
The reason for this urgent postulation lies in the signifi¬ 
cance of the pallium as indicative of the plenitude of the 
archiepiscopal jurisdiction. 

If an archbishop is personally present in the Roman 
curia, he must come before the senior Cardinal Dea¬ 
con, who imposes the pallium in the name of the Pontiff. 
The same applies to the procurator who requests the 
pallium for the archbishop, and who is, moreover, obliged 
to take an oath before the same Cardinal Deacon that he 
will conscientiously transmit the sacred ornament to the 
metropolitan. 

Since the pallium signifies the plenitude of the pastoral 
office, it must be obtained before the metropolitan can 
exercise his archiepiscopal functions. Hence he cannot 
licitly invest clergymen presented by patrons, but he may 
licitly and validly make appointments in his own arch¬ 
diocese; he cannot convoke a provincial council (can. 
284), nor licitly perform any act of jurisdiction mentioned 
in can 274. Besides, before the reception of the pallium, 
a metropolitan cannot consecrate altars, or churches, or 
bishops, or chrism, or ordain clergymen, even though he 
may have been archbishop of another diocese. 

The pallium may be worn by an archbishop in all the 
churches located within the limits of his province. 
Strictly speaking, its use is restricted to the celebration 
of the Mass, except de requiem . The festivel occasions 
on which the use of the pallium is permitted are indi¬ 
cated in the Caeremoniale Episcoporunu. 10 

10 Lib. I, c. 16, n. 6. 


PAPAL LEGATES 


61 


LEGATES OF THE ROMAN PONTIFF 

The Pope has universal power, which is not limited by 
territorial restrictions. Therefore he may send ordinary 
or extraordinary legates to represent him, or for other 
purposes. 

Dependent on the Curia, and on the Secretary of State 
in particular, are those representatives of the Sovereign 
Pontiff who go by the name of legates. The right of 
sending and receiving legates ( ius legationis activum et 
passivum) is inherent in the spiritual sovereignty of the 
Pope. 11 It is evident, however, that the actual relations 
between the diverse governments will differ according to 
the connection existing in each case between Church and 
State (sacerdotium et imperium) . In other words, where 
there is a complete separation between the spiritual and 
temporal power, papal legates will not exercise diplomatic 
functions in the proper sense, nor ask to be acknowl¬ 
edged by the public authorities as representatives of the 
Sovereign Pontiff. Their mission in such countries is 
limited to purely ecclesiastical matters, and their position 
or rank is strictly ecclesiastical. 

After this preliminary observation a few remarks on 
the historical development of the institution of papal 
legates may not be out of place. We hear of a vicar 
apostolic of Ulyricum, in the fourth century, whose office 
was entrusted to the Archbishop of Thessalonica (Sa- 
loniki). Similar rights and attributes were later bestowed 
on certain prominent sees in Gaul (Arles, 545), Spain 
(Seville, 520), and Germany (Treves, 909, Salzburg, 
973). The incumbents of these sees were considered to 
be ipso facto papal legates, or legati nati. Out of these, 

11 See our Commentary, Vol. II, pp. 278 f. 



62 


POWER OF BISHOPS 


in the eleventh century, grew the so-called primates, who 
have now dwindled into insignificance. 

Another species of legates, of greater and more lasting 
importance, are the legati missi. Leo I (440-461) sent 
Julian of Cos as his legate to the Emperor Marcian, to 
enforce ecclesiastical discipline and watch over the 
purity of faith, as well as to observe the proceedings at 
the imperial court. If anything should be doubtful, he 
(Leo) would be ready to issue further instructions. This 
is presumably the office of those who were called papal 
responsalcs or apocrisiarii. In the Orient, their activity 
lasted until Caesaro-papism engendered the unhappy 
schism of the ninth century. 

Legati missi were employed also in the West, not in¬ 
deed permanently, but for temporary or transient mis¬ 
sions, especially in the tenth and eleventh centuries, when 
the investiture fight was raging, and in the twelfth and 
thirteenth centuries, in connection with -the crusades. 
The royal courts of England and France were not in 
favor of these papal legates; but Rome insisted upon its 
rights, and when permanent nunciatures had been estab¬ 
lished upon the model of the Florentine court (Medici) 
by Julius II, the papal legates became regular diplomatic 
agents of the Pope, who, in turn, received the envoys of 
the civil governments. 

A third kind of legates are the legati a latere, i. e., 
(sent) from the side of the pontiff. They are of rather 
recent date, used merely for transient purposes, and gen¬ 
erally chosen from among the Cardinals. Thus Pius 
VII sent Cardinal Caprava to put into effect the Napo¬ 
leonic concordat; thus legati a latere have appeared in 
recent years at the international Eucharistic Congresses. 

Two centuries before John XXII complained that his 
rights were curtailed by Christian priests, Pascal II ut- 



PAPAL LEGATES 


63 


tered the same complaint against the King of England, 
who had refused to receive the Pope’s legates. In the 
Code the Pope claims the right to send legates anywhere 
he pleases. This right can be denied only on the pretext 
that the Church is not a legal and necessary society 
founded by God, that the Sovereign Pontiff is not the 
spiritual ruler of that society, and that his power is not 
supreme, immediate, and independent within its own 
sphere. But none of these claims can be sustained, and 
the right asserted in can. 265 is essential to every sov¬ 
ereign. 

The legislator is careful to specify that it is a strictly 
spiritual jurisdiction that is exercised by his legates, viz., 
one that in no way exceeds the limits of the power ex¬ 
ercised by the Pope himself. It follows that if papal 
legates would deal with political questions, or questions 
of a mixed nature which concern both Church and State, 
the “independent right” would become dependent on the 
State, which is sovereign in its sphere. This latter suppo¬ 
sition is not verified, e. g., in the case of the Apostolic 
Delegate at Washington, whose mission is confined to 
purely spiritual matters. 

It is evident that the Pope will not send legates to 
entirely pagan countries, where no Catholic subjects live, 
although he can and often does send missionaries. But 
no government under whose regime a goodly number of 
Catholics live, has the right to exclude papal legates who 
come on a purely ecclesiastical mission. 

A legatus a latere, then, is a Cardinal sent by the Sov¬ 
ereign Pontiff, and he has precisely as much power as the 
Pontiff pleases to bestow on him. 

As we have said before, legates were not always wel¬ 
come in the countries to which they were sent. One rea¬ 
son for this was that they sometimes committed grievous 



64 


POWER OF BISHOPS 


blunders and often exceeded their faculties. In the light 
of history canon 266 almost sounds like a warning. 

The following canons remove some misgivings which 
may arise in the Ordinaries of dioceses. 

The office of the legates sent as nuncios or intcrnuncios, 
is to foster friendly relations between the Apostolic See 
and the civil governments to which they are accredited; 
to observe the conditions of the churches of the territory 
assigned to them, and to inform the Roman Pontiff 
thereof. Besides these ordinary functions, they often ex¬ 
ercise others by special faculty, which, however, are all 
delegated. 

Legates who are sent out as Apostolic Delegates enjoy 
the ordinary power of watching over the conditions in the 
territory assigned to them and informing the Roman 
Pontiff thereof. 

The office of legates, with all the faculties granted 
them, does not expire when the Apostolic See becomes 
vacant, unless otherwise provided for in the official 
letters of appointment; but it ceases if the mandate or 
mission is fulfilled, or by repeal duly intimated, or by 
resignation accepted by the Roman Pontiff. Due intima¬ 
tion implies an official or authentic document. 

Since legates must respect the jurisdiction of the Ordi¬ 
naries, any suspicion against them on the part of the latter 
would be unfounded. Leo XIII justly observed, follow¬ 
ing St. Gregory: “Their rights are sacred to us, their 
honor is that of the whole Church, and the pastor’s glory 
is the solid strength and vigor of his brethren.” 


APOSTOLIC VICARS AND PREFECTS 

There is a material difference between Apostolic vic¬ 
ars appointed for, e. g., Thessalonica or Arles, and the 


APOSTOLIC VICARS AND PREFECTS 65 

Apostolic vicars appointed now-a-days for missionary 
countries. The former were quasi legati nati, whereas 
the vicars of whom the present canon treats are really 
vicars of the Apostolic See appointed with episcopal 
jurisdiction for regions where a full diocesan organiza¬ 
tion cannot as yet be established or restored. Thus a 
vicar Apostolic was appointed for Brunswick and Liine- 
burg, in 1607, under the pontificate of Alexander VII 
(1655-67), and one for Malabar, where Nestorian dis¬ 
turbances made such a measure imperative. To-day there 
are Apostolic vicars or prefects in all the territories sub¬ 
ject to the Propaganda. In England, an Apostolic vicar 
(Blackwell) was appointed in 1598, and Apostolic vicars 
continued in existence until 1850, when the hierarchy was 
reestablished. 12 

Apostolic vicars and prefects enjoy the same rights 
and faculties in their respective territories as residential 
bishops in their dioceses, unless the Apostolic See makes 
reserves. Even though they have no episcopal charac¬ 
ter, they may, within the limits of their own territory, 
and during the time of their office, impart the bless¬ 
ings reserved to bishops, except the pontifical bless¬ 
ing proper, may consecrate chalices, patens, and portable 
altars with oil blessed by a bishop, grant indulgences of 
fifty days, and confer the tonsure and minor orders ac¬ 
cording to canons 782, § 3 and 957, § 2. 

Blessings reserved to bishops are: the blessing of abbots, 
the dedication and consecration of churches, the blessing 
and laying of corner-stones, the blessing and reconciliation 
of cemeteries. The consecration of fixed altars is not ex¬ 
pressly mentioned, and, therefore, probably not included 
in these faculties. 

All these faculties, with the exception of such as re- 

12 See our Commentary, Vol. II, pp. 310 ff. 


66 


POWER OF BISHOPS 


quire the episcopal character or cannot be exercised with¬ 
out the use of holy oils, can be communicated to simple 
priests. 

Apostolic vicars and prefects may and must demand of 
all missionaries, even religious, that they show their cre¬ 
dentials or other letters explaining their mission, destiny, 
appointment, and deputation, and in case of refusal must 
forbid them the exercise of ministerial functions. 

All missionaries, including (exempt) regulars, must ask 
permission of the Apostolic vicars or prefects to exercise 
the sacred ministry within their territory. This permis¬ 
sion should not be denied except in single cases and for 
weighty reasons. This is but a repetition of former in¬ 
junctions. 

Missionaries belonging to (exempt) regular orders are 
subject to the jurisdiction, visitation, and correction of 
the Apostolic vicar or prefect in all matters pertaining to 
the government of the mission, the care of souls, the ad¬ 
ministration of the Sacraments, the direction of schools, 
the gifts of the faithful made for the mission, and the 
execution of pious legacies made in behalf of the same. 

Although an Apostolic vicar or prefect has no right, 
except in cases provided by law, to interfere with re¬ 
ligious discipline, which depends on the religious superior, 
yet in the matters mentioned in § i of this canon, should a 
conflict arise between the command of the vicar or prefect 
and that of the religious superior, the former must pre¬ 
vail, saving the right of recourse in devolutivo to the 
Holy See and special statutes approved by the latter. 

That regulars in charge of souls should be subject to 
the jurisdiction of the Ordinary in all matters pertaining 
to the exercise of this office, was established by the Coun¬ 
cil of Trent. Benedict XIV furthermore ordained that no 
appeal or injunction should delay or invalidate the exe- 


APOSTOLIC VICARS AND PREFECTS 67 


cution of these decrees and their consequences, as applied 
by the Ordinaries, and logically extended that law to the 
regular missionaries. New experiences and questions 
elicited the remarkable Constitution of Leo XIII, 
“Romanes Pontifices,” of May 8, 1881, calculated to 
settle certain disputes between Ordinaries and regulars 
employed in parish or mission work. The rules laid down 
in that Constitution have been almost entirely taken over 
into the Code, as may be seen in the section on religious. 
Here we will only add a note on schools. Leo XIII has 
subjected all elementary (parish) schools conducted by 
religious, exempt as well as non-exempt, to the direction 
and visitation of the bishop, but in the same Constitution 
states that other schools, colleges, etc., conducted by ex¬ 
empt religious are not subject to the Ordinary, though 
they require his permission for their erection. 

As to gifts made for the missions, the same Constitu¬ 
tion ordains that all donations made for missionary pur¬ 
poses must be used for those purposes. Broadly speak¬ 
ing, Sunday and house collections, pew rent and stole fees 
are mission donations and must be employed as such and 
accounted for to the Apostolic vicar or prefect. 

Religious orders which, like the Society of Jesus, have 
statutes approved by the Holy See concerning their mis¬ 
sionaries, are entitled to have them respected by Apostolic 
vicars and prefects. 

Where the number of secular priests is inadequate, the 
vicar or prefect may, upon having heard their superior, 
compel religious, even such as belong to exempt orders, 
who are attached to the vicariate or prefecture, to per¬ 
form pastoral work,—with due regard, however, to their 
peculiar statutes approved by the Apostolic See. 

Should a controversy arise between individual mission¬ 
aries over matters pertaining to the care of souls, or be- 


68 


POWER OF BISHOPS 


tween missionaries and others, or between different reli¬ 
gious orders, let the vicars and prefects settle them as 
quickly as possible. The right of recourse in devolutivo 
to the Apostolic See, however, remains untouched. 

That such controversies may arise, the incidents re¬ 
corded in several constitutions of Benedict XIV amply 
prove. This Pontiff had to settle the somewhat heated 
dissensions between the Dominicans and the Jesuits about 
Chinese rites, and solve doubts about various customs re¬ 
garding the administration of baptism and nuptial cere¬ 
monies. 13 

Apostolic vicars, like residential bishops, are bound to 
make the visitatio ad lirnina. If a serious obstacle pre¬ 
vents them from performing this duty, they may send a 
procurator, or commission some one living in the Eternal 
City to make the visit for them. 

As prescribed in can. 340, Apostolic vicars and pre¬ 
fects are obliged to make an annual report to the Holy See 
on their pastoral office and everything that touches the 
state of their vicariate or prefecture, the missionaries, 
the religious, the discipline of the people, the frequentation 
of schools, the welfare of the faithful committed to their 
care. This report must be made in writing and signed 
by the vicar or prefect and at least one of his consultors 
(see can. 302). Each vicar and prefect shall, moreover, 
at the end of each year, send to the Holy See a report on 
the number of converts, baptisms, and the annual adminis¬ 
tration of the Sacraments, together with other noteworthy 
items. 

Apostolic vicars and prefects must reside in the terri¬ 
tory assigned to them and are not allowed to be absent 
therefrom for any considerable length of time without a 

13 “Ex quo singulari” July n, 1742; ‘‘Redditae nobis,” Dec. 
19, 1744; “Omnium solicitudinum” Sept. 12, 1744. 


APOSTOLIC VICARS AND PREFECTS 69 


weighty and urgent reason, and without having consulted 
the Apostolic See. 

Whenever necessary, they must visit their district, either 
personally or, if impeded, by proxy, and at this visita¬ 
tion take due measures respecting the faith, good morals, 
the administration of the Sacraments, preaching, the ob¬ 
servance of feasts, divine worship, the education of youth, 
and ecclesiastical discipline. 

These two paragraphs enjoin residence and diocesan 
visitation, but naturally a wide margin is left as to place 
and time in missionary countries. Due regard must nec¬ 
essarily be taken of distance and transportation facilities. 
Weighty and urgent excuses may arise at any moment 
and cannot always be foreseen. 

They shall appoint a council consisting of at least three 
of their older and more experienced missionaries, whose 
opinion they shall hear, at least by letter, in important 
and difficult matters. 

As far as circumstances permit, they shall also convoke 
the principal missionaries, religious as well as secular, 
once a year, in order to learn from their experience and 
advice what may be more perfectly arranged. 

Vicars and prefects, like bishops, but with due consider¬ 
ation of persons and places, are obliged to keep archives 
for the preservation of documents pertaining to their 
districts. Similarly, but also in a manner proportionate 
to circumstances, the prescriptions concerning plenary 
and provincial councils (can. 281-291) must be applied 
to the provinces subject to the Propaganda; also the 
canonical enactments regarding diocesan synods (can. 
356-362). However, no definite time is fixed for the 
celebration of either provincial councils or diocesan 
synods, and the canons of both must, before promulga¬ 
tion, be recognized by the Propaganda. It is permissible 



70 


POWER OF BISHOPS 


to doubt whether religious superiors may be excluded 
from participation in a plenary council. 

Vicars and prefects are under strict obligation to see to 
it that worthy Christian natives or inhabitants of their 
provinces are properly trained and raised to the priest¬ 
hood. This truly Apostolic injunction was insisted upon 
in various papal constitutions and inculcated again 
and again by the S. C. Prop. Fide. Thus, on Nov. 23, 
1845, the latter enjoined that natives should be trained 
and employed, not only in inferior mission work, such 
as catechizing, but also as missionaries, who in course 
of time might become pastors of souls and even Apostolic 
vicars or prefects. The contrary practice was condemned 
as opposed to the intentions of the Holy See and out of 
keeping with the spirit of the sacred ministry. 

Apostolic vicars and prefects must apply the holy sacri¬ 
fice of the Mass for the people entrusted to them at least 
on the feasts of Christmas, Epiphany, Easter, Ascension, 
Pentecost, Corpus Christi, the Immaculate Conception, 
the Assumption of the B. V. Mary, St. Joseph, SS. Peter 
and Paul, and All Saints, with due regard to the rules 
laid down in can. 339, § 2 ff. 

They are not allowed, without consulting the Apostolic 
See, to grant to missionaries sent out by Rome perpetual 
leave of absence from their vicariate or prefecture, or 
permission to go elsewhere, or to expel them. 

In case a missionary has given public scandal, however, 
they may, after having heard their counsellors, and, if 
the culprit is a religious, after serving notice, when pos¬ 
sible, upon his superior, remove him at once, and then 
notify the Apostolic See as soon as possible. 

Vicars and prefects, if they have the episcopal charac¬ 
ter, enjoy the same prerogatives of honor which the law 
grants to titular bishops; if they are not consecrated 


APOSTOLIC VICARS AND PREFECTS 71 


they are entitled, during their tenure of office and 
in their own territory only, to the insignia and privi¬ 
leges of Apostolic protonotaries de nuniero participan- 
tinm. 

As titular bishops, Apostolic vicars and prefects rank 
after residential bishops. Their place at councils is ex¬ 
pressly defined in the Code. 14 

As to the protonotarii apostolici de numero participan- 
tiam, Pius X (“Inter multiplices,” Feb. 25, 1905) has 
regulated their dress, which is that of regular prelates, 
with the right of wearing a ring and the faculty of pon¬ 
tificating outside the Eternal City, but only with the 
faldistorium (faldstool) and without the seventh candle. 
They are not allowed to bless the people when entering a 
church. They must not say, “Pax vobis but, “ Dominus 
vobiscum” They may wear the pectoral cross only 
when they pontificate. Their mitre is not the pretiosa 
(studded with gems) but one of gold cloth or silk, and 
their skull-cap should be made of black silk. They 
always need the consent of the Ordinary if they wish to 
celebrate pontifical high Mass. 

Vicars and prefects shall, immediately upon entering 
their territory, appoint a fit clergyman as pro-vicar or 
pro-prefect, unless the Holy See has already assigned a 
coadjutor with the right of succession. 

The pro-vicar or pro-prefect has no power during the 
lifetime of the vicar or prefect, beyond that which the 
latter has committed to him; but in case the vicar or 
prefect ceases to officiate, or if his jurisdiction is impeded 
according to can. 429, § 1, the pro-vicar or pro-prefect 
assumes the government of the vicariate or prefecture 
and administers it until the Holy See provides otherwise. 

A pro-vicar or pro-prefect who has succeeded the 

14 Can. 348 f. 



72 


POWER OF BISHOPS 


vicar or prefect proper, shall immediately appoint an 
ecclesiastic to succeed him, if necessary. 

Should the appointment of an administrator have been 
omitted either by the vicar or the pro-vicar, the prefect 
or the pro-prefect, then the senior of the vicariate or 
prefecture, i. e., the priest in the territory who has first 
exhibited the papers of his appointment as missionary, 
must be looked upon as delegated by the Holy See to 
assume the reins, or if there are several of equal senior¬ 
ity, the one who has been longest in the priesthood. 

Not only Apostolic vicars, but also Apostolic prefects 
are instructed to appoint pro-prefects, in order to obviate 
any uncertainty or confusion regarding the government 
of the territory. The canon makes no distinction be¬ 
tween territories with chapters or consultors and such as 
have neither of these, but merely enjoins that a pro-vicar 
or pro-prefect shall be appointed by the prefect imme¬ 
diately upon entering his office, or rather his district. 
The power of pro-vicars and pro-prefects is suspended 
until the vicars and prefects go out of office. 

Those who rule a vicariate or prefecture ad interim, 
according to can. 309, must inform the Apostolic See of 
the fact as soon as possible. In the meantime they enjoy 
all the faculties, both ordinary (can. 294) and delegated, 
which were enjoyed by the vicar or prefect himself, with 
the exception of such as were granted with sole respect 
to person. 

These faculties are contained in certain formularies 
issued by the S. C. of the Propaganda. 

One who is appointed to an Apostolic vicariate or pre¬ 
fecture for a limited time only, must continue to ad¬ 
minister the government with all the faculties granted to 
him, until his successor has taken canonical possession of 
the office, even though his own term has expired. 


APOSTOLIC ADMINISTRATORS 


73 


APOSTOLIC ADMINISTRATORS 

(Can. 312-318) 

The Sovereign Pontiff, for weighty and special reasons, 
sometimes entrusts a canonically established diocese, 
either during the occupancy of its Ordinary or during a 
vacancy, to an Apostolic administrator, either perma¬ 
nently or for a limited period. 

Administrators, sometimes styled visitatores, occur in 
the Decretals of Boniface VIII. They were appointed 
either by the Roman Pontiff or by the chapter, the synod 
or the metropolitan, but only those appointed by the Pope 
had full power. 15 Besides it was customary to allow 
young nobles to assume the government of a diocese as 
administrators in temporal, especially princely, affairs. 
Later it became the exclusive right of the Pope to ap¬ 
point diocesan administrators. This right was often 
exercised in times of politico-ecclesiastical troubles, e.g., 
at Cologne, and, lately, at Genoa. The expedient of ap¬ 
pointing an Apostolic administrator is occasionally re¬ 
sorted to when the financial or religious conditions of a 
diocese are in a precarious state. The administrator 
is named in pleno congressu by the S. C. Consistorialis, 
and the letters of appointment are dispatched in the form 
of a bull. 

Every Apostolic administrator given to a diocese whilst 
still occupied by a bishop (sede plena ) enters upon the 
canonical possession of his administration by presenting 
the letters of his appointment to the bishop, if the latter 
is in full possession of his mental faculties and dwells in 
the diocese, as well as to the chapter, according to can. 

334 , § 3 * 

15 See our Commentary, Vol. II, pp. 326 ff. 


74 


POWER OF BISHOPS 


If the see is vacant, or the bishop is not in full posses¬ 
sion of his mental faculties, or if he does not dwell in the 
diocese, the administrator takes possession like a new 
bishop, according to can. 334, § 3. 

We believe “mentis consiliique compos” here means 
in full possession of one’s mental faculties, for it may 
happen that one can think rationally, but lacks the faculty 
of memory, or by reason of softening of the brain, has no 
will power. The so-called lucida interualla must not be 
taken into account here. 

A bishop may dwell outside of his diocese casu¬ 
ally, fortuitously, culpably or as an exile. Again, he 
may be in the diocese, but as a quasi-prisoner. In the 
latter case it may be said that he has no power of his 
own {impos consilii). 

The rights, duties, and privileges of an Apostolic ad¬ 
ministrator must be deduced from his letter of appoint¬ 
ment, or if no special provision is made therein, from 
the rules laid down in the following canons. 

An Apostolic administrator, if appointed permanently, 
enjoys the same rights and honors and is bound by the 
same obligations as a residential bishop. If he is ap¬ 
pointed for a limited time only he has the rights and duties 
of a vicar-capitular, but may visit the diocese according 
to law; he is not obliged to apply the Mass for the peo¬ 
ple. 

As to honorary prerogatives, an Apostolic administrator 
enjoys those of a titular bishop (see can. 308), or, if he 
is not a bishop, those of an Apostolic protonotary de 
numero participatetium . 

A bishop transferred to another see, who retains the 
administration of his former diocese, enjoys also in the 
latter all the honorary privileges of a residential bishop. 

If an administrator is appointed for a diocese whilst its 


EXEMPTION 


75 


bishop is still alive, the jurisdiction of the bishop and of 
his vicar-general is suspended. 

Although the administrator is not subject to the au¬ 
thority of the bishop, he must not meddle in the personal 
affairs of the bishop, nor try judicially or punish 
the vicar-general for acts committed under the former 
administration. 

If the jurisdiction of an Apostolic administrator is im¬ 
peded, or if he fails to take possession, the Holy See must 
be immediately informed; meanwhile, if the see is vacant 
or the bishop is not in full command of his faculties, the 
prescription of can. 429 ff. must be followed; in all other 
cases the bishop rules the diocese, unless the Apostolic 
See has decided otherwise. 

The jurisdiction of an Apostolic administrator does not 
expire with the death of the Roman Pontiff or the bishop; 
but it ceases as soon as the bishop of a vacant see has 
taken legal possession thereof, according to can. 334, § 3. 

Under § 1 of this canon the canons or consultors of a 
diocese cannot proceed to the election of a vicar capitular 
or administrator while the bishop, whose diocese is ruled 
by an Apostolic administrator, is alive. 

Exemption 

It is not our intention to repeat here what we have ex¬ 
plained more extensively in our Commentary . 16 But it 
appertains to the subject under discussion to sketch ex¬ 
emption and its origin. 

a) The Code, in can. 615, defines exemption as free¬ 
dom from the jurisdiction of the local Ordinary, except 
in cases expressed in the law, i. e., in the Code. This 
privilege is now enjoyed by all regulars, i. e., religious 

16 See Vol. Ill, pp. 24 ff. 


76 


POWER OF BISHOPS 


men and women, including novices, who belong to an in¬ 
stitute whose members, as a rule, pronounce solemn vows. 
It also concerns and comprises their houses and churches. 
Nuns, however, who are not subject to regular prelates, 
remain under the jurisdiction of the local Ordinary. The 
Apostolic See alone can grant exemption to religious who 
are not regulars, as it has done for the Passionists and 
Redemptorists, and a few others. Bishops may grant ex¬ 
emption from parish organization to religious houses and 
charitable institutions, provided there be a proportion¬ 
ately just and grave reason. 17 

b) There are synodal enactments which admit of no 
doubt that exemption was unknown in the first centuries. 
In the Vllth century we meet with the first ex¬ 
ample of an exemption granted by Pope Honorius I 
to Bobbio. Privileges granted by popes and emperors 
then followed rapidly. The “protection of St. Peter” 
was sought by, and granted to, religious by the Roman 
Pontiffs, who were fully aware that the religious orders 
were a bulwark of the Church in her struggle for freedom 
against the imperial power. The Mendicant Orders ob¬ 
tained extensive privileges, in fact so many that general 
discontent arose among the higher and lower clergy. The 
Councils of Constance, Basle, and the Vth Lateran Council 
endeavored to restrict these privileges, 18 but with no great 
success. Besides, there seems to have been an incurable 
confusion of ideas as to the extent of exemption. 
Huguccio and the glossa to c. I, C. io, 9 had introduced 

17 Can. 464, § 2. 

18 It sounds queer to regard exemption as the gravest evil of 
the times and most in need of reform; see Funk, Manual of 
Church History, 1913, II, 77 ff. If the “Fathers” of the 
Councils and Rome had commenced at their very door, first and 
above all, and insisted on a more general religious education, ex¬ 
emption would soon have been reduced to its proper limits. 


EXEMPTION 


77 


a distinction between the lex dioecesana and the lex iuris- 
dictionis. The former was supposed to consist in material 
or temporal rights, such as the cathedraticum, tithes, and 
certain revenues ( in recipiendo or dulcis passio, as it was 
called) ; whereas the lex iurisdictionis appears to have 
comprised the conferring of Sacraments, especially orders, 
coercive power (in dando or conferendo). But canonists 
were at a loss to find an adequate distinction. 19 The 
Tridentine Council restricted exemption, subjected regu¬ 
lars to the jurisdiction of the Ordinaries, and intro¬ 
duced a new classification of cases, to wit: 

1) cases in which regulars were subject to the Ordi¬ 
nary as Ordinary; 

2) cases in which they were subject to the Ordinary as 
delegate of the Apostolic See, and 

3) doubtful cases in which they might be subject to the 
Ordinary as quasi or etiam tanquam delegate of the Apos¬ 
tolic See. 

This caused confusion, which continued till the pro¬ 
mulgation of the Code, which has done away with all un¬ 
certainty as to exemption. 

The Code makes no distinction between delegated and 
ordinary jurisdiction of bishops over regulars. In the 
cases mentioned in the Code as falling under the power 
of the local Ordinary, the latter exercises his ordinary 
power. And this is quite proper, because, by virtue of 
the common law, religious are subject to the Ordi¬ 
nary in whose diocese they have their domicile or quasi¬ 
domicile, this being the reason which constitutes the 
parochus or Ordinarius proprius 20 

c) There is, however, one distiction still justified, and 
at least tacitly admitted by the Code. It is that between 

19 Philipps, VII, 1, 60 ff. 

20 Can. 94, § 1. 


78 


POWER OF BISHOPS 


active and passive exemption, 21 or, as we should prefer to 
say, between complete and incomplete exemption. Com¬ 
plete or active exemption comprises the superior, his sub¬ 
jects, and the territory in which they live. This exemp¬ 
tion is what is called territorium or dioecesis nullius, and 
the inhabitants of such a district are exempt by reason 
of territory, although the exemption may have originally 
been granted to persons only. We call this exemption 
complete, because where it exists the bishop has no power 
whatever, the superior of the place being the bishop (can. 
215), and those subject to him, either clerics or laymen, 
are his flock. Incomplete or passive exemption is that 
granted merely by reason of the persons whom a law 
(or privilege) declares exempt; or, in philosophical terms, 
this exemption directly (in recto) concerns the persons 
who enjoy the privilege, and only indirectly (in obliquo) 
the houses or churches (not the territory) where they live 
and pray. This is the exemption accorded by can. 615 
to regulars. It must not be conceived as a Chinese wall 
between the local Ordinary and the exempt religious, be¬ 
cause there are many points of contact between both 
established in the Code. Here is the proper place to ex¬ 
plain the laws (can. 319-327) concerning 

ABBOTS OR PRELATES NULUUS 22 

Abbots or prelates who preside over a territory of their 
own that belongs to no diocese, are called abbots or pre¬ 
lates nullius, viz., of no diocese, according as their church 
is abbatial or simply prelatial. 

An abbey or prelature nullius which does not consist of 

21 See Benedict XIV, De Synodo Dioec., I, 4, 3. 

22 See our Commentary, Vol. II, pp. 331 ff. 


ABBOTS OR PRELATES NULLIUS 


79 


at least three parishes, is ruled by special law, and the 
following canons do not apply to it. 

Abbots and prelates nullius are nominated and invested 
by the Roman Pontiff, with due regard to the right of 
election or presentation lawfully belonging to another per¬ 
son ; in which latter case they are merely confirmed or 
invested by the Apostolic See. 

Those chosen to govern an abbey or prelature nullius 
must have the same qualifications which the law requires 
for bishops. 

As abbots or prelates nullius are classed with bish¬ 
ops, it is evident that the Pope is entitled to nominate 
them. However, the Code does not wish to curtail the 
acquired rights of others, be they physical or moral per¬ 
sons. The physical person generally is the patron, e. g., 
the King of Spain concerning Ciudad Real, who presents 
a fit candidate for the vacant office. The right of election 
belongs to an electoral college, which must proceed ac¬ 
cording to the rules laid down in can. 160-178. However, 
if the constitutions or statutes of a college or chapter so 
require, the candidate must have two-thirds of the entire 
number of votes. On the other hand, any statute or con¬ 
stitution which admits only a relative majority would 
now have to be discarded. If, for instance, there are 
forty electors and three candidates, one of whom receives 
twenty, the second eleven, the third nine votes, the elec¬ 
tion is null and void. As to the qualifications of candi¬ 
dates, can. 331 must be observed. 

Can. 322, § 1 strictly prohibits any interference in the 
spiritual or temporal government of an abbey or prelature 
nullius by the candidate-elect before he has received the 
Apostolic letters confirming his election. But suppose 
the election fell upon the administrator or vicar-capitular, 



8 o 


POWER OF BISHOPS 


what then? In that case, as Pius IX has decided, 23 a 
new administrator should be chosen by the electoral col¬ 
lege. Our Code mitigates the Constitution of Pius IX 
just quoted and inflicts the penalty of suspension from the 
right of election ad bencplacitum, if the electors allow the 
candidate elected or presented to interfere before he has 
received the Apostolic letters notifying him of his appoint¬ 
ment. One who acts against this law, is declared unable 
to obtain the prelacy. But can. 334, § 3 permits an ad¬ 
ministrator who is elected bishop, to continue in the office 
of administrator. 

As to the blessing of abbots or prelates nullius, the Code 
speaks conditionally, viz.: if an Apostolic mandate or 
statute requires the same. Up to a few years ago the 
Cassinese abbots, three of whom are abbots nullius, were 
never blessed, because being chosen ad tempus, for spe¬ 
cial reasons, they simply took possession of their abbeys 
after being confirmed. An abbot must be blessed by a 
bishop, not by an abbot. 

We may mention that some abbots seem to have ex¬ 
empted themselves from the duty of visiting the tombs of 
SS. Peter and Paul at stated times. The Code, follow¬ 
ing the law laid down by Benedict XIV, enjoins on abbots 
and prelates nullius the same obligations which are in¬ 
cumbent on residential bishops, including the visitatio ad 
lirnina. 

Abbots or prelates nullius who are not consecrated 
bishops, may impart the blessing reserved to bishops, ex¬ 
cept the pontifical blessing proper; may consecrate chal¬ 
ices, patens, and portable altars with oils blessed by a 
bishop; grant indulgences of fifty days, and confer ton- 
sure and minor orders. They may also consecrate 
churches and fixed altars. But they can make use of all 

2Z “Romanus Pontifex,” Aug. 28, 1873. 


EXEMPT RELIGIOUS 


81 


these privileges only in case they are blessed by a bishop, 
if this blessing is required. Concerning the appointment 
of a vicar-general they must observe can. 366-371. 

Abbots and prelates nullius, even though not consecrated 
bishops, enjoy within their own territory the right of 
wearing the pontifical insignia with throne and canopy, 
and of celebrating pontifical functions; outside their terri¬ 
tory, they may wear the pectoral cross, a ring set with a 
precious stone, and a violet skullcap. 

Concerning other privileges, it appears improbable that 
the Code should grant them the privileges accorded to 
bishops in can 349. 

During the vacancy of an abbey or a prelature belong¬ 
ing to religious, the chapter of religious succeeds in the 
government, unless the Constitutions provide otherwise. 
To a vacant secular abbey or prelature the chapter of 
canons succeeds; however, both chapters are obliged 
within eight days from the date of receiving notice of 
the vacancy, to elect a vicar-capitular, according to can. 
432 ff., who shall rule the abbey or prelacy until a new 
abbot or prelate is elected. 

If an abbey or prelature is impedita, canon 429 must 
be observed. 

If a chapter of an abbacy or prelacy nullius belongs to 
religious, it is governed by the laws and constitutions of 
the respective religious institute; but if it is a chapter of 
the secular clergy, canons 391-422 take effect. 

For convenience sake we give a list of cases in which 
exempt religious are subject to local Ordinaries. 

THE ordinary’s POWER OVER EXEMPT RELIGIOUS 

1. He may, in urgent cases, settle controversies concern¬ 
ing precedence; can. 106, n. 6. 


82 


POWER OF BISHOPS 


2. Attendance of religious entrusted with the care of 
souls or endowed with faculties to hear confession at 
pastoral conferences; can. 131, § 3; can. 2377. 

3. Apostolic vicars and prefects may compel religious 
to undertake the care of souls; can. 297. 

4. Local Ordinaries may perform pontifical functions in 
churches of exempt religious; can. 337, § 1. 

5. Bishops may visit exempt pia loca and exempt reli¬ 
gious in all cases expressed in the law; can. 344. 

6. The consent of the local Ordinary is required for 
the erection of an exempt religious house; can. 497, § 1. 

7. He has the right and duty to visit monasteries of 
exempt nuns, though subject to regulars concerning en¬ 
closure; can. 512, § 2, n. 1; can. 603; can. 2413. 

8. He has the right and the duty to visit their churches, 
sacristies, public oratories, and confessionals; can. 512, 
§ 2, n. 2. 

9. He has the right to demand annual accounts of all 
monasteries of nuns; can. 535, § 1. 

10. To him belongs the exploratio voluntatis of postu¬ 
lants and novices of all female orders; can. 552. 

11. Exempt religious, too, must obey episcopal orders 
commanding public prayers or solemnities, ringing the 
bells ( sabuis constitutionals et privilegiis) ; can. 612. 

12. Exempt religious are subject to the penalties for 
crimes committed outside the religious house; can. 616. 

13. The local Ordinary must report abuses to the Apos¬ 
tolic See; can. 617, § 1. 

14. Domus non formatae are subject to the correction 
of the local Ordinary in case of abuses; can. 617, § 2. 

15. The local Ordinary is entitled to bless abbots; can. 
625. 

16. Exempt religious also must observe the ordinances 
concerning the celcbret or pastor bonus; can. 804, § 3. 


EXEMPT RELIGIOUS 


83 


17. They are subject to the decree of the local Ordi¬ 
nary or diocesan custom concerning Mass stipends; 
can. 831, § 3. 

18. They must obtain faculties for hearing confessions 
of all seculars and all female religious from the local 
Ordinary; can. 874. 

19. They are subject to the local Ordinary as to the 
promulgation of indulgences ; can. 919, § 1. 

20. They are subject to the local, or to the ordaining 
bishop, with regard to ordination and examination; can. 
965-967; can. 996 f. 

21. They require his permission for erecting a public 
oratory (can. 497, § 2; can. 1162, § 4) and the consecra¬ 
tion of their churches; can. 1155, § 1. 

22. Also concerning the exposition of the Blessed Sac¬ 
rament; can. 1274, § 1; 

23. And with regard to the exposition of unusual pic¬ 
tures ( imagines insolitae ) ; can. 1279, § 1. 

24. Concerning the exposition of relics an authentic 
document is required; can. 1283, § 1. 

25. Religious must attend the official Corpus Christi 
procession and may hold other processions only with the 
Ordinary’s permission; can. 1291; can. 1293. 

26. Concerning catechetical instructions and preaching, 
they are also subject to him; can. 1334; can. 1336; can. 
i 338, § 2; also as to the explanation of the Gospel; can. 
1345 - 

27. The local Ordinary may preach in churches of ex¬ 
empt religious; can. 1343, § 1. 

28. Exempt religious are obliged to pay the seminar- 
isticum; can. 1355 f. ( revocato quocumque privilegio), 
and also the cathedraticum from their parishes; can. 1504; 
can. 1507. 

29. Charitable institutes, even though exempt, must 


8 4 


POWER OF BISHOPS 


render an account to the Bishop if demanded by him; can. 
1492, § 1. 

30. Superioresses are liable to punishment hy the local 
Ordinary in case of transgressing can. 549-552; see can. 
2412; also in case of disobeying can. 521-523; see can. 
2414. 

The metropolitan may pontificate and wear the pallium 
in churches of exempt religious in his territory; 
can. 274, n. 6; can. 277. 

Superiors who actually govern a community of religious 
who in law go by the name of regulars, 2 * are exempt 
from the jurisdiction of the local Ordinary and enjoy ec¬ 
clesiastical jurisdiction in the forum internum as well as 
externum 25 This same power is accorded by the Code 
to all superiors of exempt clerical institutes, even though 
their members do not pronounce solemn vows. 26 If not 
exempt, they have only domestic or dominative power, 
which refers to the internal and external administration of 
the institute, but not to any jurisdiction either in the in¬ 
ternal or external forum. Hence in whatever concerns 
external ecclesiastical discipline and sacramental power, 
especially the confessional, viz., the jurisdiction for ab¬ 
solving from sins and censures, such superiors fall under 
the common law. 

The power of jurisdiction in the external and internal 
forum, granted to actual—not titular—superiors of ex¬ 
empt clerical institutes, is not territorial, but personal; it 
affects the person of the superiors and their subjects 
wherever these are. The houses and churches of such 
exempt clerical religious are affected indirectly. Further- 

24 Can. 488. 

25 Can. 501, § 1. 

26 Ibid, and can. 615. 


EXEMPT RELIGIOUS 85 

more, this power suffers exceptions, which are mentioned 
in the law. 

Religious superiors of exempt clerical institutes go by 
the name of Ordinaries, but not local Ordinaries. Hence 
those texts of the Code which either explicitly or equiva¬ 
lently (e.g., by using the term bishops) mention “local 
Ordinaries,” do not apply to religious superiors. 27 

The title “Ordinary” is given by the Code 28 only to the 
superiorcs maiores, viz., “the abbot primate, the abbot 
superior of a monastic congregation, the abbot of an in¬ 
dependent monastery, even though it forms part of a mo¬ 
nastic congregation, the superior general of the whole in¬ 
stitute, the provincial superior, their vicars, and all others 
who have powers equivalent to those of provincials”— 
provided always, as far as the nomenclature of Ordinary 
is concerned, that these are superiors of exempt clerical 
institutes. We reckon also among the “higher” superiors: 
the guardians, rectors, and conventual (not cloistral) 
priors. 29 

Lawfully elected abbots who actually govern a com¬ 
munity and are blessed by the bishop in whose diocese 
the monastery is located, within three months from the 
date of election, enjoy the power of conferring the tonsure 
and minor orders on those subject to them by virtue of 
the religious (at least temporary) profession, and also the 
privilege of using pontificals, with the exception of the 
purple skullcap. 30 

This text needs only a few remarks. As to conferring 
orders, abbots must follow the Code. Concerning pon - 

27 Can. 198. 

28 Can. 488, n. 8. 

29 See our Commentary, Vol. Ill, pp. 120. 

30 Can. 625; cfr. our Commentary, Vol. Ill, pp. 351 ff. 


86 


POWER OF BISHOPS 


tidcals, we refer to former decisions, which we here sum¬ 
marize. But we wish to emphasize that we have no in¬ 
tention to prejudice either a valid privilege or a reasonable 
custom. 

a) The number of days on which pontifical functions 
may be performed is no longer limited, as it was by the 
decree of Alexander VII, of Sept. 27, 1659. This does 
not, however, mean that said decree has no longer any 
value as to other rules contained therein; otherwise the 
S. Congregation would not so uniformly insist on its 
observance. 

b) Abbots cannot pontificate in other churches than 
their own, viz., in churches which are pleno iure incor¬ 
porated with their monastery. If they wish to pontifi¬ 
cate in other churches, either religious or secular, they 
need a special papal indult and the consent of the local 
Ordinary. 31 

c) By virtue of a privilege obtained before the Council 
of Trent (1545-1563), abbots are not allowed to conse¬ 
crate chalices or bless bells if anointing is to be used. In 
general, abbots, though permitted to pontificate, are not 
allowed to bless bells or sacred vessels for which the 
unctio with chrism is required. To do this a special 
papal indult must be obtained. 32 

d) A bishop may not delegate the blessing (consecra¬ 
tion) of bells to one who is not a bishop. 33 

e) Nowhere in these decisions is there any explicit 
statement that things blessed by abbots without a papal 
indult, are invalidly blessed. 

f) Abbots of regulars may grant permission to other 

31 S. Rit. C., Dec. 18, 1846 (Dec. Auth., n. 2923). 

32 S. Rit. C., June 6, 1626; Aug. 12, 1673; May 16, 1744, ad im 
(Dec. Auth., n. 409, i486, 2377). 

33 S. Rit. C., April 19, 1687 (Dec. Auth., n. 1781). 


LEGISLATIVE POWERS 87 

abbots of the same order to exercise pontifical functions 
in their churches. 34 

It may be well to state that Clement XIV (“Decet” of 
July 23, 1770) granted to the Priors General of the Order 
of St. Paul the First Hermit the privilege to consecrate 
sacred utensils and bells for their own churches. 35 


SECTION II 

Legislative Powers of Local Ordinaries 

After having described various bearers or subjects of 
jurisdiction, the object of this power may now be ex¬ 
plained according to the Code. 

Can. 335, § 1 says: Residential bishops have the right 
and duty to govern their diocese in spiritual and temporal 
matters with legislative, judiciary and coercive power, 
which, however, must be exercised in accordance with the 
sacred canons. 

Here two principles are stated: the governing power 
of bishops is (1) locally determined, and (2) objectively 
circumscribed by the common law. According to this 
twofold rule bishops must govern, i. e., as St. Thomas 
says, properly lead those who are to be governed to 
their appointed end. 3fi The object of each individual dio¬ 
cese is the same as that of the universal Church. 
Therefore, the common law is the rule by which bishops 
must lead that portion of the faithful that has been en¬ 
trusted to their care, to the kingdom of Heaven. 

In what, then, does the legislative power of bishops con- 

34 S. Rit. C., Oct. 1, 1701 {Dec. Auth., n. 2080). 

35 Continuatio Bull. Rom., t. V, 225. 

30 De Regimine Principum, 1, c. 14 (ed. Mich, de Maria, S. J., 
1886, Selecta Opp., II, 31). 


88 


LEGISLATIVE POWER 


sist? Being the guardians, not the authors, of the com¬ 
mon law of the Church, they must watch over its enforce¬ 
ment. They may, furthermore, make new decrees in 
matters which the common law has overlooked or left un¬ 
determined, for in that case an episcopal decree is not 
against, but beyond the law. Thus, for instance, the com¬ 
mon law ordains in a general way that children should be 
brought to church for baptism as soon as possible. The 
bishop may determine the precise time. He may also de¬ 
termine more accurately the common law rules concern¬ 
ing clerical dress and conduct. He may abolish customs 
that are contrary to the common law and proper to his 
diocese only; although, as Benedict XIV says, 37 he should 
proceed cautiously in abrogating long-standing practices 
tolerated by the Church. Bishops, therefore, are bound 
by the Code (can. 336, § 1) to urge the observance of 
ecclesiastical laws. 


I. GENERAL RULES WITH REGARD TO THE CODE 

a) The liturgical laws of the Latin Church, more espe¬ 
cially those concerning the Holy Sacrifice of the Mass, 
the administration of the Sacraments and sacramentals, 
as laid down in the rituals, remain intact, unless expressly 
corrected by the Code. 

b) Concordats remain untouched. 

c) Privileges and indults granted by the Holy See 
remain in force, provided they are still in use and not 
revoked or expressly recalled by the Code. 

d) Customs reprobated by the Code must be abolished; 
those that are not reprobated, but of century long dura¬ 
tion and immemorable, may be tolerated if the Ordi- 

37 De Synodo Dioec XII, 7, 4; XI, 1-3; 10 ff. 


DIOCESAN LAWS 


89 

nary, with due regard to places and persons, considers 
that they cannot be prudently abolished; the rest shall be 
regarded as suppressed, unless the Code expressly pro¬ 
vides otherwise. 

e) All laws, whether universal or particular, that are 
opposed to the prescriptions of the Code, are abrogated, 
unless some special provision is made in favor of a par¬ 
ticular law. Our Baltimore Councils must be judged ac¬ 
cording to can. 6, n. 1. 

As to penal laws, the Code alone is effective. 

2. ECCLESIASTICAL AND DIOCESAN LAWS 

a) Laws go into effect when they are promulgated. 
There is a difference between the promulgation of general 
or universal laws, and that of episcopal laws. The 
former are, as a rule, promulgated by being published 
in the official Acta Apostolicae Sedis (can. 9). Episcopal 
laws, says can. 335, § 2, oblige immediately from the 
moment of promulgation, unless otherwise provided in 
their wording. The mode of promulgation for episcopal 
laws may be decided by the bishop. 

b) What the Code says (can. 17-20) concerning the 
obligatory character and interpretation of ecclesiastical 
laws in general is applicable also to episcopal laws. 

c) As to the extension of laws the Code (can. 12-14) 
enacts that only baptized persons who have attained to 
the use of reason are bound by ecclesiastical laws. 

General laws, i. e., laws given for the universal 
Church, bind all for whom they are given, everywhere. 

Particular laws, i. e., laws given for a particular terri¬ 
tory, bind only those for whom they are given and who 
have a domicile or quasi-domicile in that territory and 
actually reside therein. This applies to diocesan or epis- 




90 


LEGISLATIVE POWER 


copal laws. However, laws are not to be identified with 
precepts, which touch the person. 

Strangers ( pcregrini ) are not obliged to observe the 
particular laws of their own territory whilst they are 
absent therefrom, unless the laws are personal. Neither 
are they bound to observe the particular laws of the terri¬ 
tory in which they are sojourning, with the exception of 
those that concern the public welfare or legal formalities. 
General laws, however, they must observe, even though 
these laws are not enforced in their home territory; but 
they are not bound to observe general laws if these are 
not binding in the place where they sojourn. 

d) A law ceases to oblige if it is abrogated, either 
directly by a contrary law or simple abrogation, or by a 
contrary custom. But a law does not cease to oblige if 
the lawgiver goes out of office, viz)., when he dies, or re¬ 
signs, or is transferred. On the other hand, precepts 
given to individuals cease to bind when the lawgiver loses 
his authority, unless they were imposed by a legal docu¬ 
ment or in the presence of two witnesses (can. 24). If 
an incardinated priest is suspended by his bishop per 
modurn praecepti, or simply told to stay away from the 
diocese, this precept ceases to oblige when the bishop is 
no longer Ordinary of that diocese, unless the precept 
has been administered as above. 

The bishop is the sole lawgiver in his diocese. But 
his legislative activity must be exercised within the limits 
drawn by the Code. He may not issue laws against the 
clear enactments of the common law, although he should 
emphasize the regulations of the Code and may enact 
laws beyond the Code ( practcr legem). 

The bishop is not the authentic interpreter of the Code, 
but the authentic interpretation of that document is re¬ 
served to the supreme lawgiver, his successors, and those 


DIOCESAN SYNODS 


9 i 


to whom the legislator has entrusted this power, as, e. g., 
the Pontifical Commission for the Authentic Interpreta¬ 
tion of the Code. Bishops may indeed, like any com¬ 
mentator, apply their private interpretation, provided 
they follow the rules laid down in can. 18-20. But 
since no law can cover all cases that may come up for 
decision, the rule is that each case should be decided on 
the basis of laws given in similar cases, of the general 
principles of Canon Law based on equity, of the method 
and practice of the Roman Court, or the common and 
constant teaching of approved canonists. However, this 
analogical interpretation is excluded in case of penalties, 
which must always be interpreted strictly. 

The bishop, being the sole author of diocesan laws, is 
also the sole authentic interpreter of the same. Although 
the Ordinary is not limited to diocesan synods for giving 
laws for his diocese, yet the synod is the usual and more 
solemn means for enacting laws. Here then is the 
proper place to insert what the Code says concerning 

Diocesan Synods 
(Can 356-362) 

The first diocesan synod or gathering of the clergy of 
a diocese of which we have knowledge was held by Pope 
Sirieius, about 387, in Rome. The holding of synods 
1 soon became customary in the Eternal City, and Innocent 
III was wont to convoke one twice or three times a week. 
These were, however, rather forerunners of the con¬ 
sistory, to which foreign bishops were admitted. In the 
Frankish kingdom diocesan synods were not infrequent 
in the sixth century, to judge from the seventh canon of 
the synod of Auxerre, a. d. 578, which set up the rule 
that in the middle of May all the priests, and on the first 


92 


LEGISLATIVE POWER 


of November all the abbots, should meet annually in the 
episcopal city. These synods were mixed meetings in 
which both ecclesiastical and civil matters were debated. 
The Fourth Lateran Council (1215) ordered synods to 
be held annually to promulgate the decrees of provincial 
councils. The same decree, with the addition of discipli¬ 
nary injunctions concerning the profession of faith and 
the appointment of synodal judges and examiners, was 
adopted by the Council of Trent. The pseudo-council 
of Pistoja, in 1786, adopted certain false propositions 
concerning the importance and authority of synods and 
the power of parish priests,—propositions which were 
condemned by the Church. 38 

1. A diocesan synod should be held every ten years 
reckoning the date from the year 1918, when the Code 
went into effect. 

If a bishop rules two dioceses, either aeque principal- 
iter united, or one as administrator only, he may convoke 
only one synod, in which both dioceses take part. 

2. The subject-matter to be treated at synods is limited 
by the Code to the “particular needs and welfare of the 
clergy and people of the respective diocese.” This, of 
course, does not exclude the right of making provincial 
decrees known or inserting them in the diocesan enact¬ 
ments. 

The synodal proceedings are outlined by Benedict XIV 
in his classic work De Synodo Dioecesana: 

(1) Public prayers, allocutions, and sermons; 

38 Pius VI, “Auctorem fidei” Aug. 28, 1794, n. 9-11; see our 
Commentary, Vol. II, 385.—M. Pistocchi, De Synodo Dioecesana, 
19 22, has published a commentary on this subject—but nihil novi. 
We may be permitted to state that almost all the commentaries 
so far published have offered us little assistance or matter for 
practical use. 


DIOCESAN SYNODS 


93 


(2) Reading of the decrees and profession of faith 
(now to be made according to the formula given in the 
Code) ; 

(3) The election of synodal judges and examiners, and 
the appointment of diocesan officials; 

(4) Statement of cases to be reserved (now no more 
than three or four) for atrocious crimes; 

( 5 ) Determination of the cathedraticum, taxes, stole 
fees, etc.; 

(6) Determination of the alms for Mass stipends and 
discussion of abuses concerning them; 

(7) Rendering of an account for the diocesan semi¬ 
nary. 

No. 5 is modified by can. 1507, which strictly prescribes 
that the fixing of taxes for ecclesiastical trials, for the 
execution of papal rescripts, for stole fees, and for the 
cathedraticum must be settled by a provincial council or 
at a meeting of the bishops of the province. Consequently 
a diocesan statute, for instance, as to the cathedrati¬ 
cum, enacted by the bishop only, would not bind the clergy 
or beneficiaries. Neither should matters of faith be 
brought up at the synod, although particular dangers to 
faith and morals, such as may exist in a diocese, may be 
discussed and remedies proposed and adopted. Bene¬ 
dict XIV urges as diocesan matter the uniform observance 
of liturgical laws and the correction of abuses. We 
might add: pastoral conferences, the administration of 
church property, and, above all, the inculcation of the 
laws of the New Code. 

3. The authority that convokes a synod is the bishop 
who has been confirmed by Rome and taken possession 
of his diocese, even though he be not yet consecrated 
(can. 357). If he is a metropolitan, he may convoke a 
synod after the reception of the pallium. We say that 


94 


LEGISLATIVE POWER 


he must have taken possession of his diocese, because 
can. 334, § 2, rules that he is not allowed to 

take a hand in the government of the diocese before he 
has formally taken possession. The name of “Ordinary” 
in this case includes Apostolic administrators, Apostolic 
vicars, abbots and prelates nullius, but not vicars-general 
without a special commission, or vicars-capitular, who, 
on the contrary, are entirely excluded because they can 
have no mandate. 

4. As to place, it is becoming that the synod be held 
in the cathedral, as “the mother and head of the other 
churches,” though any good reason suffices for choosing 
another church. Such a reason would be repairs going 
on in the cathedral church, or a clerical retreat. 

5. Can. 358 determines who are to he invited to, and 
must he present at, the diocesan synod. They are: 

a) The vicar-general, who has the first place after the 
bishop; 

b) The canons of the cathedral church, or the diocesan 
consnltors, who take the place of the cathedral chapter 
(can. 427) ; therefore all the consultors must be called. 

c) The rector of the clerical or theological seminary. 
The term “saltern maioris ” leaves room for calling the 
directors of other ecclesiastical institutions of men, such 
as colleges, high schools, etc. 

d) All the rural deans. 

e) A delegate of each collegiate chapter. This delegate 
is to be elected by the chapter from among its members, 
according to can. 160-178. 

f) The pastors of the city in which the synod is held; 
hence, if it is held in the cathedral city, all the pastors of 
that city; if in another city or town, the pastors or 
pastor of that city or town. 


DIOCESAN SYNODS 


95 


g) At least one pastor from each deanery. He must 
be elected 39 by those who have actual care of souls, i. e. } 
all those who are called pastors, the administrators of 
parishes, those who have temporary charge of a parish 
because of the pastor’s absence or disability (can. 473- 
477) ; but not the assistants or curates. The pastor who 
is elected according to the rules laid down for election, 
must provide a substitute for the time of his absence, 
according to can. 465, § 4. 

h) The governing abbots and one of the superiors of 
each clerical institute in the diocese; this superior must 
be appointed by the provincial, unless perchance the pro- 
vincialate is in the diocese and the provincial himself 
chooses to take part in the synod. 

These eight classes of persons must be called to the 
synod, and if called, they are obliged to attend. To make 
the invitation and will of the bishop more efficacious, 
canon 359, § 2, gives him the right to proceed against 
recalcitrants with ecclesiastical penalties. These com¬ 
prise, besides the privation of active and passive suffrage, 
excommunications and other penalties, to be inflicted at 
the good pleasure of the bishop. This procedure affects 
governing abbots and exempt religious only if they are 
actually pastors of parishes. 

If a lawful impediment, such as sickness, or legitimate 
absence on a vacation, or urgent business, prevents one 

39 We cannot agree with Pistocchi, 1 c., p. 34, when he main¬ 
tains that a religious (pastor) is ineligible, because he is not 
a pastor proper, but merely a vicarius. He has all the duties 
and rights of a pastor and is equivalent to a pastor according to 
can. 451, § 2, n. 2. What would be the consequence of this 
theory in a vicariate or abbatia nullius, where most of the 
i“pastors” are religious? Here the mind of the lawgiver should 
prevail. 




9 6 


LEGISLATIVE POWER 


who is obliged to be present from attending the synod, 
he is not allowed to send a proxy, but must inform the 
bishop of the impediment. 

The Code (can. 358, § 2) permits the bishop to invite 
to the synod also the canons of the collegiate chapter, the 
canons of the cathedral chapter of a diocese united with 
his own, all the pastors and all religious superiors, nay, 
even all the secular clergy of the diocese, with the ex¬ 
ception of as many as are necessary for the care of souls. 
All these, if invited, enjoy the right of voting, like the 
others, unless the bishop lays down a different rule. 
Notice the term invitati ;—they are merely invited, and 
hence are free to come or not to come, and the bishop 
cannot inflict any penalty for non-attendance. 

6. The Code (can. 360 and 361) then suggests (it is no 
command) the arrangement of the discussions to be fol¬ 
lowed at the synod. 

a) If the bishop deems it opportune, he may, before 
the beginning of the synod, appoint one or more commis¬ 
sions composed of diocesan priests, to prepare the matter 
for discussion. Before the sessions begin, the bishop 
should have a draft of the decrees ready for distribution 
to those who are present. 

b) The questions proposed shall be submitted to the 
free discussion of all present at the preliminary sessions, 
presided over by the bishop or his delegate. 

7. The bishop alone is the lawgiver at a synod, whilst 
all the other participants have only a consultative vote. 
He alone signs the synodal decrees, which, if promulgated 
at the synod itself, bind from that date on, unless other¬ 
wise ordained by the bishop either at or after the synod. 
But it appears to us that the election of examiners is 
subject to the decisive vote of those present; although we 
do not deny the right of the bishop to overthrow this vote. 


PROVINCIAL COUNCILS 


97 


Since the bishop is the sole ruler of the diocese, and is 
alone endowed with the legislative power in foro extcrno, 
it is evident that all synodal decrees made in conformity 
with the common law of the Church need no approbation 
or signature on the part of the diocesan consultors, the 
synodal judges, or the rest of the clergy. The clergy, 
both secular and regular, must, however, carry out the 
decrees made at a synod. Any other theory would per¬ 
vert the true idea of hierarchical jurisdiction. At the 
same time it may be well to call attention to Benedict 
XIV’s rule that nothing should be enacted in a synod 
which would be detrimental to the privileges of exempt 
religious, because these are granted by the Supreme 
Pontiff. 40 


Plenary and Provincial Councils 

Bishops or local Ordinaries may also be legislators at 
plenary or provincial councils, which, therefore, cannot 
be entirely omitted here. We shall restrict our comments 
to the most important points. 

When Christianity had spread, and diocesan centres 
were erected, the bishops assembled for deliberation and 
especially for the uprooting of heresies. This custom 
soon became an important factor in the life of the Church. 
Synods or councils, as they were called already in Ter- 
tullian’s time, were quite frequent in the third, and even 
more so in the fourth century, and were generally held in 
times of a crisis, but also for disciplinary purposes. 
Since the middle of the third century they were known by 
the name of provincial (exarchal) councils. In Africa, 
however, plenary or universal councils, presided over by 

40 De Syn. Dioec., IX, 15; Pius VI, “Auctorem fidei” Aug. 28, 
1794, n. 9 ff. 


9 8 


POWER OF BISHOPS 


the primate of Carthage, were celebrated in the fourth 
and fifth centuries. Roman or papal synods went by the 
same name almost to the close of the Middle Ages. The 
Council of Trent 41 ordered provincial councils to be held 
every three years for the regulation of morals, the correc¬ 
tion of excesses, and the settling of controversies. Not¬ 
withstanding this enactment, times were so unfavorable 
that more than a century elapsed without a provincial 
council being held, with the exception of one at Tarra¬ 
gona in Spain, until Benedict XIII held a synod at Bene- 
vento in 1693. Since then they became more frequent. 

In this country the first provincial council was held at 
Baltimore, in 1829, followed by others in 1833, 1837, 
1846, and 1849. In 1852, the first National or Plenary 
Council was convoked by Archbishop F. P. Kenrick, of 
Baltimore, in his capacity as Apostolic Delegate of Pius 
IX. The second followed fourteen years later, and the 
last one was held in 1884, under the presidency of Arch¬ 
bishop Gibbons of Baltimore as Apostolic Delegate. 

1. The Ordinaries of several ecclesiastical provinces 
may meet in a plenary council after having obtained per¬ 
mission from the Roman Pontiff, who will designate a 
legate to convoke and preside over the council. 

Leo XIII, after having received the petition of the 
South American bishops, left it to them to choose the 
place of meeting, but was highly pleased with their choice 
of Rome, where the illustrious prelates met in 1899 and 
enacted a number of decrees, which received the specific 
approval of the Holy See. 

Those who must attend a plenary council are: 
the Apostolic legate, the metropolitans, the residential 
bishops (who may, however, send their coadjutors or 

41 Sess. XXIV, cap. 2, De Ref.; see our Commentary, Vol. II, 
pp. 297 ff. 


PROVINCIAL COUNCILS 


99 


auxiliaries), Apostolic administrators, abbots or prelates 
nullius, Apostolic vicars and prefects, vicars-capitular. 
Titular bishops may be called, and if called, must attend. 
All these have a decisive vote. Other clergymen who may 
be invited have only an advisory vote. 

2. Provincial councils should be held in each province 
at least every twenty years. 

The metropolitan, or in case he is lawfully prevented 
or the archiepiscopal see is vacant, the suffragan who is 
the senior of the province by reason of promotion to the 
suffragan see, shall select the place for holding the coun¬ 
cil, after having received the opinion of all those who 
are obliged to assist thereat with a decisive vote. If 
there is no serious obstacle, the metropolitan church 
should be chosen. The metropolitan shall convoke and 
preside over the council. 

The term “auditis” signifies that the metropolitan is not 
bound by the opinion or quasi-vote given, but may choose 
a place according to his own pleasure. 

Bishops who are not subject to a metropolitan, abbots 
or prelates nullius, and archbishops without suffragans, 
if they have not done so already, may once for all, with 
the approbation of the Holy See, choose the nearest 
metropolitan, at whose provincial council they must assist, 
and the enactments of which they must observe and put 
into effect. 

Those who are to be called and must attend are, besides 
the metropolitan, the suffragan bishops and those men¬ 
tioned above, as for the plenary council. All these have 
a decisive vote. 

Besides, two members of the cathedral chapter, or two 
diocesan consultors must be invited, and if invited, are 
obliged to be present; but they enjoy only an advisory 
vote. Such an advisory vote is also accorded to the 


IOO 


LEGISLATIVE POWER 


higher superiors of exempt clerical institutes and the 
presidents of monastic congregations who live in the prov¬ 
ince, and who, if called, must attend or inform the 
council of the lawful impediment that keeps them away. 

Those who are obliged to attend either a plenary or a 
provincial council, and who have a deliberative vote, shall, 
if detained, send a procurator with proof that they are 
legitimately detained. If the procurator is one of the 
“Fathers” of the Council, he enjoys but one vote; if he 
is not a “Father,” he has a consultive vote only. 

The president of either a plenary or a provincial council 
(the latter with the consent of the “Fathers”) shall 
establish the order in which questions are to be exam¬ 
ined, and shall open, transfer, prorogue, and close the 
council. 

Those who are obliged to attend a plenary or provincial 
council are not allowed to depart, once the council has 
been opened, unless they have a reason approved by the 
Apostolic legate or the Fathers of the Council. 

Notice the difference between those who are obliged to 
attend, because they may enjoy only an advisory vote, 
and the Fathers of the council, who are entitled to a de¬ 
liberative or decisive vote. 

The Fathers of a plenary or provincial council shall 
earnestly examine and decree upon all matters touching 
the increase of faith, the control of morals, the correction 
of abuses, the settling of controversies, the preservation 
and introduction of uniform discipline, and whatever may 
be opportune for their particular territory. 

Finally, though the canon says nothing about it, the 
mode of procedure at a council is by vote. The vote may 
be secret or open. This point is to be settled in a pre¬ 
liminary session. The presiding officer has no pre¬ 
ponderating voice, even where there is a. fie, unless the 



CUSTOMS 


IOI 


papal legate to a plenary council has received special in¬ 
structions from the Holy See. 

After the close of a plenary or provincial council the 
president of the same shall send all the acts and decrees 
to the Holy See, and they must not be promulgated until 
the S. C. of the Council has examined and approved them. 
The mode of promulgation as well as the date of their 
going into effect is left to the Fathers of the council. 

The decrees of a plenary or provincial council, after 
being duly promulgated, oblige throughout the whole 
territory for which they were made, and the Ordinaries 
of the various dioceses cannot dispense from them except 
in individual cases and for a just cause. 

Unless otherwise provided for by the Apostolic See, the 
metropolitan, or if he fails to act, the senior suffragan 
bishop (according to can. 248), should see to it that the 
Ordinaries of all dioceses meet every five years at a 
stated time, at the metropolitan’s or a fellow bishop’s 
residence, in order to deliberate about the affairs of their 
dioceses and thus foster the good of religion, as well as 
to prepare the questions to be treated in a future provin¬ 
cial council. 

The bishops and others mentioned in can. 285, together 
with other Ordinaries, should be called and must attend a 
conference to appoint the place for the next meeting. 

All these regulations are intended to secure a harmoni¬ 
ous and uniform proceeding as well as to foster charity. 

3. Customs 
(Can. 25-30) 

A community which is capable of having an ecclesiasti¬ 
cal law imposed on it, can introduce a custom which may 
obtain the force of law (can. 26). 


102 


LEGISLATIVE POWER 


a) The subject, carrier, or author of a custom, there¬ 
fore, is a corporation acknowledged as such by the 
Church. The State cannot create an ecclesiastical cor¬ 
poration, though it may sanction it. The corporation or 
community must be one which is capable of having a 
law or statute imposed on it. To this class belong dio¬ 
ceses, provinces, and religious corporations of an auton¬ 
omous character, for instance, a monastic congregation 
or monastery of exempt religious. But parishes and 
deaneries cannot introduce customs, though they may have 
their peculiar observances. 

b) The custom must be reasonable. No unreason¬ 
able custom is supposed to have the tacit consent of the 
lawgiver. An unreasonable custom is one which is con¬ 
trary to the divine or the natural law (for instance, 
divorce), or which contradicts the constitution of the 
Church, or is subversive of ecclesiastical discipline, or 
directly reprobated by the Code. Most diocesan laws, 
unless they are sanctioned by a reprobating clause, admit 
of a contrary custom. 42 


4. Rescripts 

Rescripts may justly be referred to particular or spe¬ 
cial laws, for the Code itself (can. 62) mentions them 
in this connection. A rescript is a written answer given 
by the legitimate ecclesiastical superior, either directly, 
or indirectly through the medium of a competent tribunal, 
to a question proposed or a favor requested. 

1. The grantor of such a rescript may be the Apostolic 

42 The Code attaches reprobating clauses to canons 343, 
§ 2; 346; 396, § 2; 403; 409. § 2; 418, § 1; 433, § 1; 455, §1; 
460, § 2; 774, § 1; 818; 978, § 3; 1006, § 5; 1041; 1056; 1181; 
1356, § 1; 1408; 1492, § 1; 1525, § 1; 1576, § 1. 


RESCRIPTS 


103 

See, or the Ordinary himself. As to favors and dis¬ 
pensations granted by the Apostolic See , note that these 
are more frequently addressed to the local Ordinaries 
than to the parties themselves. The Ordinary thus be¬ 
comes the executor of a papal rescript. Therefore he 
should be aware of the rules governing the office of ex¬ 
ecutor. The Code mentions two kinds of executors, one 
who acts merely as executor ( executor necessarius) , and 
one who is a mandatory ( executor voluntarius). 

The general rule for each and every executor is that 
he acts invalidly if he acts before he has received the 
official letters and determined their authenticity and in¬ 
tegrity, unless he has been previously informed of their 
contents by authority of the grantor (can. 53). 

From this ruling we deduce that no rescript can 
be validly executed before the papers are, not merely sent 
off in Rome, but received by the executor. The papers, 
therefore, must be authentic and integral. Authenticity 
requires that the stylus curiae is observed. This is pe¬ 
culiar to each congregation, tribunal, and office of the 
Roman Court. Thus the nominations which are promul¬ 
gated in the Consistory are expedited in the form of a 
Bull. 43 The same holds with regard to the establishment 
of a diocese or a chapter of canons, or the consolidation 
of dioceses. 44 Matrimonial dispensations are expedited 
in the form of briefs, signed by the subsecretary of the 
S. C. of Sacraments, if they concern an impediment of 
an inferior degree, or by the Cardinal Prefect or Secre¬ 
tary, if an impediment of a higher degree is involved. 45 
The rescript, as a rule, contains (1) the petition together 

43 See Vol. I, p. 14 of our Commentary. 

44 "Sapienti consilio” June 29, 1908, “Normae Peculiares ” cap. 
VII, art. II, n. 10 (A. Ap. S., I, 84). 

45 Ibid., art. Ill, n. 13, 17 ( l. c., I, 89 f.). 


104 


LEGISLATIVE POWER 


with the reason for it, (2) the dispositive part or grant of 
the petition, and (3) date, place, and signature. 

These extensive or formal characteristics are common 
to all rescripts, whether they contain a mere favor or a 
judiciary decision. 

A rescript very often contains clausulae which mention 
certain conditions attached to the grant, either essential or 
accidental. Conditions made in rescripts, says can. 39, 
are essential if expressed by the particles si, dummodo, 
or others of the same meaning. Such particles are at 
the same time indicative of an executor who has (dele¬ 
gated) power to inquire into the existence or verification 
of the conditions expounded in the petition. For instance, 
a priest has asked permission to say the votive Mass of 
the B. V. M. because of poor eyesight. The condition 
must be verified by the executor if the phrase, “dummodo 
res ita se Jmbeat” is appended. 

In case a rescript commissions the executor merely to 
carry out its terms ( executor neccssarius), he is not al¬ 
lowed to refuse to do so unless it is evident that the re¬ 
script is void in consequence of a subreptio (failure to 
state the truth) or obreptio (allegation of a falsehood) ; 
or the executor is satisfied that the conditions appended 
to the rescript are not fulfilled; or the petitioner is un¬ 
worthy of the favor granted. For example: a religious 
has obtained a rescript of secularization with the clause: 
“dummodo episcopum benevolum invenerit!' It may be 
that a bishop had expressed his willingness to receive 
him into his diocese, but withdrew his consent before the 
rescript was signed in Rome. In that case the condition 
is not verified, and the rescript may (though it must not, 
the text is not prohibitive) be withheld. Again the reli¬ 
gious has conducted himself rather unsatisfactorily pend¬ 
ing the grant of secularization. In this case the rescript 


RESCRIPTS 


105 


need not be executed, but the executor should immediately 
inform the grantor, i. e., in the example alleged, the S. 
Congregation of Religious, of the unworthiness of the 
grantee. 

a) If the executor is a voluntarius, or as can. 54, § 2 
puts it, if the granting of the favor is committed to the 
executor, the latter may either grant or deny it, accord¬ 
ing to his prudent judgment, for the executor in this case, 
by virtue of the rescript, has delegated power from the 
grantor. The executor may make use of a substitute, un¬ 
less the wording of the rescript provides otherwise. Be¬ 
sides, a rescript may be executed by the successor in 
dignity or office of the original executor, unless the latter 
was appointed on account of personal qualities. 

b) The next clause to be observed by executors is 
that, though the document is not yet in their possession, 
they may have been previously informed of its contents by 
authority of the grantor. An example: A matrimonial 
dispensation was executed by the local Ordinary upon 
having received a cablegram from his agent, but before 
the papers had arrived. The source through which the 
telegram was sent was not the authority of the grantor, 
and therefore a new execution must take place. 46 The 
authority proper is the Cardinal Prefect, or the Secretary, 
according to the rules prescribed for these officials with 
regard to dispensations. 

Sometimes rescripts are granted without the agency of 
an executor. Such rescripts take effect from the date 
of their signature, or, in canonical language, a die datae 
(can. 38). Does the law requiring that the papers 

40 S. O., Aug. 24, 1892 (Coll. P. F., n. 1810). However, in 
urgent cases can. 1043, as compared with cans. 204 and 81, will 
render a new execution superfluous; S. Poenit., Jan. 15, 1894 
(Coll, cit., n. 1858). 



io6 


LEGISLATIVE POWER 


be in the hands of the executor before he can validly act, 
apply to the case of one who receives a favor without an 
executor?—in other words, if the recipient himself is the 
executor? For instance, an abbot has petitioned for au¬ 
thorization to consecrate a Sisters’ chapel. The eve of 
consecration has come, but no paper from Rome. At the 
last minute a dispatch arrives from Rome, not from the 
S. Congregation of Religious, but from the Abbot Pri¬ 
mate, saying that the favor was granted. Can the abbot 
consecrate the chapel? We believe that he can. For, 
first and above all, can. 53 demands that the papers be 
in the hands of the executor. In our case no executor 
is needed: it is a mere favor, and therefore is valid from 
the date the Cardinal Prefect or the Secretary of the Con¬ 
gregation has put his signature to the rescript. Besides, 
although a telegram is not the usual way, yet the grantor 
may choose this means, and hence commission or permit 
a trustworthy person to communicate the favor by wire. 
It, therefore, depends upon the trustworthiness of the 
intermediary, who, in the case stated, is above suspicion. 
Lastly, since favors must be interpreted broadly, we are 
not obliged to apply the law (can. 53) which limits 
executory or mandatory rescripts rigorously to rescripts 
which contain a mere favor conferred without the aid of 
an executor. 

There is attached to every rescript the implied condition 
that the request zvas founded on truth , since the grantor 
must be supposed to be a wise and prudent dispenser of 
favors which, as a rule, are a breach of the law, and since 
rescripts are requests, these must have some foundation 
or be based on reason. Now in rescripts for which no 
executor is appointed, the conditions upon which the 
petition is based must be real at the time the rescript is 




RESCRIPTS 


107 


signed. Thus, if a priest asks for permission to wear 
a “wig” while celebrating Mass, his head must be destitute 
of its natural covering at the time the rescript is signed. 
If the rescript requires an executor, it is valid from 
the date on which the executor has signed it. Thus, 
for instance, the transfer of a religious from one house 
to another must be signed by the religious Superior who 
is named as executor. In the case of a matrimonial dis¬ 
pensation the reasons for granting it must be verified at 
the moment when the local Ordinary signs the paper. 

However, the reasons for the petition may not always 
be fully stated (subreptio) , or it may be that falsehoods 
have crept into the petition ( obreptio ). The Code says 
(can. 42) that subreptio does not affect the validity of 
a rescript if it conforms to the style of the Roman Court, 
that is, if it bears the signature of the proper authority, 
the reason stated and the pars dispositiva, or grant of 
authority. Obreptio does not invalidate the rescript if at 
least one of several reasons, or the principal reason, is 
true. Thus in a matrimonial dispensation angustia loci 
may be rather doubtful, but aetas superadulta may be a 
genuine fact. 

Errors affecting the name of the person to whom or 
by whom a rescript is issued, or the place where that per¬ 
son dwells, or the favor itself, do not render a rescript 
invalid, if the Ordinary is persuaded that no doubt exists 
as to the identity of the person or the nature of the favor 
asked for. 

2. Since Ordinaries, too, may grant favors which are 
within their competency, i. e within the ordinary power 
granted them by the Code or by special faculties, the rules 
stated for Apostolic rescripts must be applied here also. 
But it may be well to define the relation of the Ordinary 


ioB 


LEGISLATIVE POWER 


to the Roman Court, on the one hand, and the relation 
between bishop and vicar-general on the other. It is 
thus set forth in the Code (can. 43 f.) : 

‘‘A favor denied by one Sacred Congregation or Office 
of the Roman Curia cannot validly be granted by another 
Congregation or Office, or by the local Ordinary, even 
though he have the power, except with the consent of the 
S. Congregation or Office which handled the case first,— 
with due regard, of course, to the right of the S. Peniten¬ 
tiary in matters of conscience. 

“No one shall ask another Ordinary for a favor refused 
by his own Ordinary without making mention of the re¬ 
fusal ; if mention is made, the second Ordinary shall not 
grant the favor until informed of the reasons for the 
former Ordinary’s refusal. 

“A favor denied by the vicar-general and later ob¬ 
tained from the bishop, without mention of the refusal, 
is invalid; a favor denied by the bishop cannot validly be 
asked of the vicar-general without the bishop’s consent, 
even if mention of the refusal is made.” 

The underlying principle of this regulation is that the 
Roman Curia, as well as the bishop and his vicar-general, 
form a unit. Two different bishops constitute two sepa¬ 
rate tribunals, wherefore § 1 of can. 44 does not assert 
the invalidity of the rescripts, but merely their illicitness, 
for the purpose mentioned above. 

It may happen that a rescript is issued by the Pope or 
by an Ordinary who goes out of office shortly afterwards, 
either by death, resignation, or transfer. Does the rescript 
lose its force by reason of the vacancy of the Holy See 
or of a diocese? No, says the Code (can. 61), unless the 
contrary appears from the clausulae, or unless the rescript 
conveys the power of granting a favor to particular per¬ 
sons expressly named therein, and the matter has not yet 


RESCRIPTS 


109 


taken a legal turn. Generally speaking, the rescripts are 
addressed to the local Ordinary, and therefore such re¬ 
strictive clauses or clausulae are rare. But the second 
reason is not infrequent, for it concerns matrimonial dis¬ 
pensations issued for particular persons. What if such a 
rescript arrives from Rome during the vacancy of the dio¬ 
cese? Is the administrator allowed to execute it? Yes, 
for the rescript is supposed to contain a dispensation, and, 
therefore, according to can. 62, the rule stated in can. 66 
may be applied: It passes to the one who succeeds the 
former Ordinary in office. The clause “et res adhuc 
Integra sit” means that no summons has as yet been issued 
(can. 1725). For a rescript containing a matrimonial 
dispensation may require the summons of the parties or 
witnesses or persons otherwise interested. This may 
also apply to a favor which requires investigation, for in¬ 
stance, respecting a private oratory. 

3. A word concerning presentation of rescripts. The 
Code (can. 51 and 52) regulates this matter at follows: 
A rescript which requires no executor must be presented 
to the Ordinary of the petitioner only in case (a) the 
presentation is enjoined in the document itself, (b) or 
there is question of public affairs, or (c) there are condi¬ 
tions that are subject to probation. As a rule, rescripts 
which concern religious must be presented to their su¬ 
perior, who, in case of exempt clerical religious, is the 
Ordinary. If the rescript states, “cum consensu Or di¬ 
nar ii” it follows that a religious can neither validly nor 
licitly make use of the favor granted in the Apostolic re¬ 
script without the consent of his superior. If, on the 
other hand, the rescript contains the clause “consulto Or- 
dinario” or “audito Ordinario” or a similar phrase, the 
religious may validly (though illicitly) make use of the 
favor granted without consulting his superior. This we 


no 


LEGISLATIVE POWER 


infer by a perfectly legitimate analogy from can. 105, n. 1. 
The same holds good with regard to secular priests who 
obtain a favor with the same clause. As “to public 
affairs,” we may mention: benefices, honorary titles, 47 in¬ 
dulgences, 48 relics, shrines, etc. The last-mentioned kind 
of favors comprises private oratories and all dispensa¬ 
tions which depend on the verification of the alleged 
facts. As to the time within which rescripts must be 
presented, the law rules that if no definite time is set, a 
rescript may be exhibited to the executor at any time, pro¬ 
vided fraud and deceit are excluded. 

5. Privileges and Faculties 

As we have already stated, privileges and faculties may 
be contained in rescripts, although a privilege is more fre¬ 
quently granted in the more solemn form of a Constitu¬ 
tion, or Brief, or Motu proprio. A privilege granted by 
Motu proprio has this peculiarity that it is valid even if 
subreptitious, unless the final reason, provided it be the 
only one, is false. However, though granted Motu pro¬ 
prio, a rescript is of no effect if given to a person incap¬ 
able of receiving the favor granted under the common law, 
or against the lawful custom or particular statute of the 
place, or against the acquired right of another person 
(can. 45 f.). Those incapable by law of receiving papal 
favors are persons excommunicated or suspended after a 
condemnatory or declaratory sentence, or personally in¬ 
terdicted. 49 Local customs and peculiar statutes are safe- 

47 Lately we were startled by grants of monsignorships to re¬ 
ligious; can. 515 seems to be a dead letter. 

48 The faculty of erecting the Stations of the Cross must al¬ 
ways be shown to the Ordinary; S. C. Indulg., Feb. 5, 1841. 

49 Can. 2265, § 2; can. 2275, n. 3.—Protestants, as such, are not 
tinder sentence of excommunication; can. 2283. 


PRIVILEGES AND FACULTIES 


in 


guarded because the supreme lawgiver is not supposed 
to know them, nor to be willing to contravene them. 

As to privileges, or more or less permanent concessions 
against or beyond the law, the Code does not demand that 
exempt religious “show” their privileges to the local 
Ordinary, except in the case of those granted orally . 
These may, indeed, be used by the grantee in the court of 
conscience, but cannot be asserted against others in the 
external forum, unless the grantee can prove that he has 
legitimately obtained them. If a privilege orally granted 
by the Sovereign Pontiff was afterwards verified or testi¬ 
fied to by a Cardinal, the proof is full. 50 The Code (can. 
78) expressly calls upon Ordinaries to inform the 
Holy See when privileges granted by the Apostolic See 
are abused by the grantees. It would be an abuse if ex¬ 
empt religious claimed more for exemption than it im¬ 
plies, or if they refused obedience in cases where they owe 
it under the law, or if they attempted to extend exemption 
to affiliated Sisters. In all such cases the local Ordinary 
would certainly be entitled to examine the respective 
privilege, because “liabet intentionem fundatam in hire ” 
in plain English, he has a priority of rights. 

Faculties and Indults 

The Code (can. 66) under the general title of privi¬ 
leges mentions also the so-called faculties, i. e V 51 certain 
rights denied by common law, but granted by special 
privilege. It follows from the nature of a faculty that 
it can be given only by one who has the power to modify 

50 Can. 239, § 1, n. 17. 

51 Facultas implies power or right, in the subjective sense, and 
its bearer here is the Ordinary, not as such, but as delegate of the 
Roman Pontiff. 


LEGISLATIVE POWER 


112 

the common law. This one is primarily the Pope, though 
bishops also may grant faculties concerning matters sub¬ 
ject to their legislation. Since the XVIth century spe¬ 
cial faculties were granted, chiefly to the German bishops, 
classified in certain formularies, as pro foro externo and 
pro foro interno, as quinquennales and triennales, 
and for a determined number of cases. The latest grant 
(Formulary III) was forwarded by Card, de Lai, Secre¬ 
tary of the S. C. of the Consistory, on March 17th, 1922, 
to all the “Ordinaries of America, Russia, and Other 
Places outside of Europe.” These faculties are intended 
as quinquennial. The Code (/. c.) provides: 

1. That habitual faculties granted forever, or for a 
limited time, or for a definite number of cases, are privi¬ 
leges beyond the law; and that 

2. Unless they were conceded for personal reasons, 
or unless the law provides otherwise, habitual faculties do 
not expire with the authority of the Ordinary (or others; 
see can. 198, § 1) to whom they have been granted by the 
Apostolic See, even though he may have begun to execute 
them, but pass over to those who succeed him in office. 
Faculties granted to the Bishop are intended also for the 
vicar-general. 

3. A faculty implies all the powers necessary for its 
exercise; hence the faculty of dispensing includes the 
faculty of absolving from censures, if necessary, but 
only for the purpose of receiving the dispensation. This 
may be thus explained: 

(1) Habitual faculties are those which are commonly 
granted to bishops, either for a certain time or for a 
limited number of cases, and are, as it were, concomitants 
of the episcopal office. As they are numbered among the 
privileges, the rules of interpreting privileges must be ap¬ 
plied to them, ceteris paribus. 


FACULTIES AND INDULTS 


ii3 

(2) These habitual faculties do not expire with the 
cessation of the Ordinary’s term of office, but continue 
in his successors, and the faculties granted to the bishop 
are also given to the vicar-general, unless the bishop (or 
others to whom the faculties were given) was selected for 
this honor on account of personal qualities. The name 
“Ordinary” is applied to diocesan bishops, each for his 
territory, to abbots nullius, and to the vicars-general of 
both, to Apostolic vicars and prefects, and to the su¬ 
periors of exempt religious. The successor of the Ordi- 
dinary to whom a faculty was granted, may complete the 
execution thereof which the predecessor had begun, e. g., 
by calling witnesses, issuing summonses, etc. 

(3) A faculty, if given, grants the use of all the means 
necessary for its application, and hence the faculty of dis¬ 
pensing includes the power of absolving from censures, 
when necessary; but only for the purpose of rendering 
the subject capable of receiving the dispensation. There¬ 
fore, e. g., an excommunication or suspension or personal 
interdict is, de facto, suspended only here and now, whilst 
conditions added to the censures for the case of real ab¬ 
solution remain. 

What are indnlts ? The Code (can. 4) distinguishes 
them from privileges and rights otherwise acquired. 
However, the fact is that a canonical microscope is needed 
to perceive any great difference between them. The 
Roman law mentions favors granted by the Emperor as 
the supreme lawgiver. 52 The old collections apply the 
same meaning and identify indulgentia with privilegium . 53 
The Council of Trent speaks of privilegia sen indulta, 54 
The indults given to our country have different names. 

52 L. 1, Cod. Theod., Ill, 10; 1 . 1, ibid., IV, 15; 1 . is, ibid., XV, 2. 

63 Cc. 17, 19, X, V, 33; c. 21, X, V, 40. 

54 Sess. VI, cap. 2, De Ref.; Kirchenlexicon, ed. 2, VI, 698. 


LEGISLATIVE POWER 


114 

Thus the one for the extension of the Easter season is 
called facultas; 55 the fast and abstinence indults are styled 
by the S. Congregation dispensation and faculty of dis¬ 
pensation. 50 From this it may reasonably be inferred that 
there is no essential difference between indult, privilege, 
faculty, and dispensation. If one would stress the dura¬ 
tion of time, he might find a plausible distinction for cer¬ 
tain kinds of indults, but not for all. However, there is 
no doubt that privileges involve a more or less permanent 
grant, whereas indults are generally granted only for a 
certain time or for certain cases. Besides, privileges, be¬ 
ing special laws, as a rule comprise a particular class of 
persons, whereas indults are given to individuals and as 
particular laws, i. e. } for certain countries. Thus, for in¬ 
stance, the extension of the Easter season was inserted 
as a particular law in the decrees of the Second Plenary 
Council of Baltimore. 57 

Use of Privileges and Faculties 

Privileges, faculties, and indults, as stated above, indi¬ 
cate a favor beyond or against the law. In order to make 
proper use of them it is, above all, necessary to interpret 
them according to the will of the lawgiver. Besides the 
general rules of interpretation there are two which espe¬ 
cially apply to privileges: 

(a) A privilege must be interpreted according to its 
wording, and must be neither extended nor restricted (can. 
67). An extension would take place if the privilege were 
applied to persons not intended by the grantor, for in- 

55 S. C. P. F., Oct. 16, 1830 (Coll. Lac., Ill, 36). 

6 6 S. C. P. F., Sept. 2, 1837 (ibid., Ill, 60 f.). 

57 Tit. V, cap. IV, n. 257 (Coll., Ill, 464). The subsequent 
clause wishes to see this condition reduced to normal times. 


USE OF PRIVILEGES 


ii 5 

stance, to lay persons if intended for clerics, or if it were 
applied to cases different from the one intended, for in¬ 
stance, consanguinity in the second degree mixed with 
the first degree to that of consanguinity of the first de¬ 
gree purely and solely. A restriction is effected if a favor 
not specifically or numerically determined in the grant is 
limited to a certain category or number. Take, for in¬ 
stance, the faculty granted by the S. Rit. C. (Formulary 
III, n. 9) concerning the use of incense at a Missa Can¬ 
tata without ministers. There would be a restriction if 
the bishop allowed it only on Sundays or holydays of 
obligation, and a specific limitation, if he would allow 
alienation to the amount of $10,000 only for first mort¬ 
gages, excluding perfectly good, though unsecured per¬ 
sonal notes. 

(b) In case of doubt privileges must be interpreted 
like rescripts, but in such a way that the recipient always 
retains some proof of the good will of the grantor (can. 
68). As to rescripts, the Code rules (can. 50) that, in 
case of doubt, rescripts which pertain to disputes or trench 
on the acquired rights of others, or reverse the law in 
favor of private parties, or, finally, rescripts which were 
given for the attainment of an ecclesiastical benefice, de¬ 
mand a strict interpretation; all others may be interpreted 
broadly. 

Concerning the use of privileges, the following rules, 
partly taken from the Code and partly from former 
practice, may be mentioned: 

No one is obliged to make use of a privilege which has 
been granted to him solely for his own benefit, unless an 
obligation to that effect should arise from another source 
(can. 60). The first clause of this section refers to per¬ 
sonal privileges, such as those mentioned in can. 239 and 
can. 349 with regard to cardinals and bishops, concerning 


n6 


LEGISLATIVE POWER 


some of which it has been clearly stated that they cannot 
be habitually delegated. 

May faculties be subdelegated? We refer to Formu¬ 
lary III of March 17, 1922. This question may be an¬ 
swered from various points of view: fact, right, and ex¬ 
tent of communication. 

a) Note first, that no communication is needed with re¬ 
gard to the vicar-general, as can. 66, § 2, says: “Faculties 
granted to the bishop are intended also for the vicar- 
general.” The Code says nothing concerning the diocesan 
chancellor. By virtue of can. 199, § 2, the bishop could 
validly and licitly communicate these faculties to his 
chancellor or to another priest; but it appears contrary to 
the intention of the Code to admit more than one vicar- 
general (can. 366, §3), which would practically be the 
case if these faculties would be given to the chancellor. 
Unity of government and the authority of the vicar- 
general might suffer unnecessarily from such a procedure. 

b) A bishop may, but is not obliged to, communicate 
to other priests such faculties as are communicable. Of¬ 
ten it is necessary, or at least useful, to communicate 
them, since the bishop cannot do everything himself. 58 
But if he communicates them, the bishop cannot restrict 
or extend them arbitrarily, or add new conditions or 
clauses to the faculties which are not expressed in the 
original text, but must communicate them tales quales, 
i. e., just as they were granted by Rome. Therefore it is 
safest either to show the original text or to have an ac¬ 
curate copy made of it. 59 

c) As regards the extent or number of the faculties 
to be communicated to others, it is safe to say that the 

58 Benedict XIV, “Apostolicum ministerium,” May 30, 1753, § 
11; cfr. Putzer, Comment, in Facult. Apost., ed. 4, p. 45, n. 34. 

59 S. C. P. F., March 16, 1865 (Coll. P. F., n. 1270). 


LOSS OF PRIVILEGES 


ii 7 

rules of subdelegation, according to can. 199 may be 
followed, unless a contrary clause or the matter itself 
should forbid or restrict subdelegation totally or partially. 
Besides, those faculties which commence with the words 
“Facultas” are not intended to be habitually granted, ex¬ 
cept perhaps IV, n. 7, from the Congregation of Religious. 
On the other hand, those which commence with “de - 
putandi,” “benedicendi,” “ per mitt endi,” “celebrandi,” “ab- 
solvendi may be committed habitually. Thus there is no 
doubt that the faculties from the S. Poenitentiaria may be 
habitually communicated to others. Much more is this 
true of faculties to which the text itself adds: “cum 
potestate subdelegandi 

The local Ordinary is not obliged to grant faculties to 
all priests alike; on the contrary, he should ascertain the 
fitness of the priest to whom he wishes to grant faculties, 
and may withdraw them entirely or partially from a 
priest who has made a bad or imprudent use of them. 
However, Benedict XIV says the Ordinary should be very 
cautious and kind when faculties are to be suspended 
or withdrawn. 00 In general, he should weigh the fitness 
of the priests, the need of the souls entrusted to their care, 
and the frequency of the cases that may occur, especially 
in view of distances and the extent of the diocese. 
The same rule may be applied proportionately to the so- 
called episcopal cases, i. e., cases reserved to the bishop. 

Loss of Privileges 

Unless the contrary is evident, privileges are perpetual 
(can. 70), and hence a special act of the grantor is re¬ 
quired to recall them. This act may be either explicit 
or implicit. 

60 “Apostolicuvi ministerium,” /. c.; Putzer, l c., p. 46. 


ji8 


LEGISLATIVE POWER 


a) An explicit act of revocation is either general or par¬ 
ticular. Thus the legislator may, by the explicit act of 
promulgating a contrary general law, abolish privileges 
contained in the law or the Code. In this case, and in 
this case only, the privileges granted by law are abrogated 
(can. 71). Hence indults or privileges which contain 
favors beyond or against the Code, and not contained in 
the Code itself, are not repealed by the promulgation of 
the Code, as the legislator expressly states (can. 4). 

To repeal privileges not contained in the Code a par¬ 
ticular and explicit manifestation of the grantor’s will is 
required. Therefore, such a privilege, like a rescript, is 
revoked only by a special act of the superior, which must 
be duly intimated to the grantee (can. 60, 71). Thus 
faculties and indults, prescinding from their character of 
temporary grants (triennial, quinquennial), are not re¬ 
called by the promulgation. However, an exception must 
be made to a general revocation, viz., if the law itself re¬ 
vokes the privilege. This is done by the insertion of a 
clause which in the Code is expressed by the words, 
“revocato quocunque privilegio” ; for instance, certain 
privileges limit the rights of bishops. 61 Besides, if an 
Ordinary has granted a privilege which he could grant 
by virtue of his ordinary power, it may be revoked by a 
law issued by the supreme power (can. 60, § 2). Thus, 
e. g., he may allow bination by reason of can. 824, § 2, 
but if the Apostolic See would issue a law abolishing this 
power, the grant of bination would be void. 

An explicit revocation is also contained in certain 
clauses attached to privileges or indults. Thus “ad bene- 
placitum nostrum or “durante officio,” or “durante pon- 

61 Can. 343, § 2; 403; 460, § 2; 519; 544, § 2; 654; 774, § 1; 
876, § 1; 964, nn. 1, 4; 1157; 1267; 1356, § 1; 1576, § 1. 


LOSS OF PRIVILEGES 


119 

tificatu ’ mean that a privilege or indult lasts as long as 
the grantor is in power. Otherwise privileges continue 
even after the grantor has gone out of office (can. 73). 

b) Implied acts abolishing privileges or indults. Thus 
real privileges, i. e., such as are attached to things (for 
instance, a shrine, a chapel, a devotional article), cease 
upon the complete destruction of the thing or place, but 
local privileges revive if the place is restored within fifty 
years (can. 75). 

A privilege may be lost by contrary prescription, just 
as it may be acquired by prescription (can. 63, can. 76), 
provided, of course, that the thing or right is liable to 
prescription. 02 

A privilege also ceases if in course of time conditions 
change to such a degree that, in the judgment of the su¬ 
perior, the privilege becomes harmful, or its use illicit; or 
if the time for which the privilege has been granted ex¬ 
pires, or the number of cases for which it was given is 
full; without detriment, however, to canon 207, §2. 

Can. 207, § 2 refers to delegated power for the internal 
forum, and states that an act performed by inadvertence 
or oversight is not invalid, even though the number of 
cases for which the faculty was granted has been over¬ 
stepped, or the time for which the indult was given 
has elapsed. Thus the faculties granted by the S. Poeni- 
tentiaria in Formulary III fall under the ruling of can. 
77 and can. 207, § 2. Can. 209 says that the Church 
supplies the necessary jurisdiction, in the internal as well 
as external forum, in cases of a common error and in 
cases of probable positive doubt, either of fact or law ; 

By non-use, or contrary use, a privilege which is not 
injurious to others does not cease; but a privilege that is 

62 Can. 1509 states what is not subject to prescription. 


120 


LEGISLATIVE POWER 


burdensome to others loses its force by legitimate pre¬ 
scription or tacit renunciation. 

Whoever abuses the power granted to him by a privi¬ 
lege deserves to be deprived of the privilege itself; and 
the Ordinary shall not fail to notify the Apostolic See 
if anyone grievously abuses a privilege granted to him 
by that See. 


6. Dispensations 

What Abbot of Fleury (d. 1004) said of dispensations, 
i. e. y that they are relaxations of the law in particular 
cases, is still the guiding principle in granting them. 
He wrote: “We must take into consideration the 
situation of countries, the character of the times, the 
frailty of men, and other reasons which of necessity 
change the laws of different provinces. The same is true 
concerning papal decrees, which are of such authority 
that many judges expect the verdict of the Roman 
Pontiff. In these things, therefore, utility and equity 
(utilitas et honestas ) must prevail, but not the enticing 
enjoyment of desires.” 63 The same idea recurs in the 
prologue to the Dccretum of Yvo of Chartres (d. 1115). 
He reduces the reasons for granting dispensations to 
two—utility and necessity, and compares the Church to 
a crew who throw merchandise overboard in order to 
save the ship. 64 Gratian went no farther, for all his 
texts are taken from Yvo. 

The Code briefly states who may grant dispensations, 
determines the power of the Ordinaries and pastors, 
states the causes for dispensations and how they must 
be interpreted. 

63 Collectio Canonuvn, c. VIII (Migne, 139, 483). 

64 Proleg. in Decretum (Migne, 161, 47 ff.). 



DISPENSATIONS 


121 


1. Dispensation presupposes or is, so to speak, coexten¬ 
sive with, legislative power. Therefore the Pope can 
dispense in all matters subject to his legislation, that 
is to say, in ecclesiastical, but not in divine, laws. The 
same power is vested in his successor, because he is his 
equal, and “par in parent non habet imperium.” But the 
Pope can also dispense from episcopal laws, for he is 
superior to the bishops. On the other hand, a bishop 
may dispense from papal laws only if he has re¬ 
ceived the necessary faculties from the Apostolic See. 
The same applies to superiors of exempt religious 
orders. 

The Pope is not bound by the existence or validity of 
reasons, but can dispense validly without reason, although 
it is not to be presumed that he would proceed thus, since 
a dispensation is “a sore on the law,” and should not be 
used for destruction. This is not the case with those who 
are inferior to the Pope, hence canon 81 establishes the 
power of those inferior to the Roman Pontiff. 

2. As to the power of the Ordinaries, it must logically 
be held: 

(a) that they cannot dispense, even in particular cases, 
from the general laws of the Church, because Ordinaries 
are not the givers of general Church laws; but 

(b) they may receive the power of dispensing from 
general laws, either explicitly or implicitly. That power 
is granted explicitly, e.g., in can. 806, § 1, concerning 
bination, which is now an ordinary power, because the 
law itself confers it on the local Ordinaries (exclusive 
of others who are not local Ordinaries). Explicitly the 
power of dispensing from general laws is given by 
faculties, indults or rescripts. It may, moreover, be 
implied by an office to which the power of dispensing is 
attached. Thus the office of cardinal conveys the priv- 


122 


LEGISLATIVE POWER 


ileges of absolving from all censures except the four most 
especially reserved. 

(c) Ordinaries may also dispense from general laws in 
cases 

1. °in which recourse to the Holy See, viz., to one of 
the S. Congregations or tribunals, is difficult; 

2. ° when there is grave danger in delay, and 

3. 0 when the dispensation requested is one which the 
Holy See is wont to grant. These conditions may concur 
in matrimonial cases and in irregularities arising from hid¬ 
den defects or crimes. Recourse to the Holy See here 
means ordinary recourse, i. e., by mail, not by telegraph, 
which is an extraordinary means of communication. A 
grave danger is present when escape is almost, not en¬ 
tirely, impossible, and hence it is not necessary that it be 
a casus fortuitus, or unforeseen accident. How grave the 
danger must be, cannot be determined by a general rule; 
but scandal or injury of reputation would suffice to con¬ 
stitute a serious danger. Finally, the case must be one 
from which the Holy See is wont to dispense, for nothing 
is included in the general concession which the superior 
is not likely to grant. Hence, whatever is rare, extra¬ 
ordinary, unusual, or difficult to obtain from the Holy See, 
does not come within the sphere of episcopal power, for 
instance, irregularities in defectu corporis enormi. This 
is the viewpoint which the Ordinaries—and religious 
superiors also, for the canon does not add “ loci’ or 
“locorum” —must take in relation to the common law as 
contained in the Code. 

Bishops and other local Ordinaries may dispense from 
diocesan laws, because here they are the legislators. They 
may also dispense from the laws of provincial and plenary 
councils, but only in particular cases and for a just reason. 


DISPENSATIONS 


123 

Particular here refers to individuals and specified or de¬ 
termined places or parishes. 

Bishops and other local Ordinaries cannot dispense 
from particular laws given by the Holy See for that 
particular territory; for instance, from the law governing 
the nomination of candidates for vacant sees in the United 
States (S. C. Cons., July 25, 1916), or, we believe, from 
the law regarding holydays. 

Parish priests cannot dispense either from a general 
or from a particular law, unless they have expressly re¬ 
ceived that power, as, for instance, through can. 1044 and 
can. 1245, § 1 of the Code. But they have no such 
power concerning the banns of marriage. 

3. Concerning the causes or reasons for dispensation 
the Code (can. 84) rules as follows : 

“No dispensation from an ecclesiastical law is to be 
granted without a just and reasonable cause, and due re¬ 
gard must always be had to the importance of the law 
from which the dispensation is given; otherwise the dis¬ 
pensation given by an inferior is illicit and invalid. When 
there is doubt as to the sufficiency of the cause, a dispensa¬ 
tion may be lawfully asked for, and licitly and validly 
granted.” 

The cause may be the motive or impelling reason, 
the former being the raison d'etre of the dispensation, the 
latter only an aid, or, as the Scholastics were wont to ex¬ 
press it, the motive cause is “ad esse simpliciter” the im¬ 
pelling cause “ad facilius esse!’ Here the causa must be 
understood as the motive cause. 

Concerning the time when the causa must be verified, 
we refer to can. 41, De Rescripts'. If no executor is 
appointed, the cause must exist at the time when the dis¬ 
pensation is granted; if an executor handles the dispen- 


124 


POWER OF BISHOPS 


sation, the cause must be verified at the moment when he 
affixes his signature. 

As to the nature of the cause, the Code says that it 
must be just and reasonable. Justice refers to law, which 
admits certain causes and rejects others. Thus a list of 
canonical causes is set up, e. g., for matrimonial dis¬ 
pensations. The cause must be reasonable because, as 
law pertains to reason, so also must a dispensation partake 
of reason. The judgment as to the latter quality lies 
with the grantor. 

Furthermore, there must be due proportion between 
the seriousness or importance of the law and the dis¬ 
pensation, which is a vulnus legis. Hence for relaxing a 
serious law a serious and solid reason must be advanced; 
a graver cause is required to dispense from a major than 
from a minor impediment. 

Besides, it is but just that the persons for whom a dis¬ 
pensation is issued, should be considered, because influen¬ 
tial persons are more important for the public welfare 
than ordinary mortals. 

Lastly, the circumstances must be considered, not only 
of persons, but also of consequences which might prob¬ 
ably follow, e. g., scandal, damage, injury, etc. If the 
reason alleged is not just and reasonable, the dispensation 
granted by an inferior is illicit and invalid. 

4. As to interpretation, the rules given with regard to 
rescripts apply also to dispensations, i. e., they, as well 
as the faculty of dispensing granted for certain cases, are 
subject to strict interpretation, without extension or re¬ 
striction. The Code says: “A dispensation which per¬ 
mits of successive application ceases the same way as 
privileges, and with the certain and complete cessation 
of the motive cause.” 

What has been said concerning the manner in which 


ADMINISTRATIVE POWERS 


125 


privileges cease, must be applied here also, because habit¬ 
ual faculties are privileges beyond the law (can. 66, § i), 
and hence cease by renunciation, repeal, or the death of 
the grantor, if there is a clause that says so, otherwise 
not. To ask whether a dispensation can be lost by con¬ 
trary usage and prescription seems, at first sight at least, 
silly. Yet a dispensation which permits of successive 
application (tractum successivum ), e. g., eating flesh-meat, 
saying a “black Mass,” etc., is not exhausted by one act, 
and may therefore be forfeited if contrary usage and an 
imperative act of the superior combine. The Code says 
that such dispensations lose their force in the same way 
as privileges, and hence we must apply that disposition of 
the law also to the case in hand. 

The Code finally provides that, if the motive cause 
ceases entirely and for certain, the dispensation also 
ceases. The two conditions (“entirely and for certain”) 
must be taken conjointly. For instance, if one has re¬ 
ceived a dispensation from the vow of chastity ad usum 
matrimonii on account of temptations, he may continue 
the use of marriage even after the cessation of these 
temptations, because there is no certainty. But if a 
cleric has obtained a dispensation from reciting the 
Breviary on account of weak eyes, he cannot continue 
the use of the dispensation after his eyesight has been 
completely restored. 


SECTION III 
Administrative Powers 

Bishops, for various reasons, need helpers in the 
government and administration of their dioceses. These 
helpers may or may not be endowed with the episcopal 


126 


ADMINISTRATIVE POWERS 


character. If so, they are called coadjutors or aux¬ 
iliaries. 65 If not bishops, they constitute what is prop¬ 
erly called the diocesan court, a reproduction, on a 
smaller scale, of the Roman Curia. 

coadjutors 

1. Since the XHIth century the Roman Pontiff ex¬ 
clusively appoints episcopal coadjutors. This is rarely 
done in such a way that a coadjutor is attached to the 
see, so that the successor of the deceased bishop has the 
same coadjutor as his predecessor. The Code calls such 
a coadjutor datus sedi. There must be particular reasons 
for making an appointment in this way. The more 
usual way is to appoint a coadjutor to the person of the 
bishop and with the right to succession ( datus personae 
Episcopi cum iure successionis). If the right to suc¬ 
cession is excluded, the coadjutor goes by the name of 
auxiliary. 

2. The rights of “a coadjutor given to the person of 
the bishop” depend on his letters of appointment. If 
the bishop is entirely disabled, the coadjutor assumes 
all his episcopal rights and duties, unless the letters of 
appointment provide otherwise. If the bishop is not en¬ 
tirely disabled, the coadjutor may exercise as much of the 
episcopal power as the bishop entrusts to him. How¬ 
ever, the Code rules that the coadiutus should not 
habitually delegate to others what his coadjutor can and 
is willing to do. The reason is evident. It would be 
an insult to the Holy See and a slur on the coadjutor 

05 As to the history see above. These bishops were called 
episcopi titidares, annulares, nullatenses, auxiliares, suffraganei, 
vicarii in pontiticalibus. 


COADJUTORS 


127 


if a third party were habitually called into the diocese 
to perform episcopal functions. Per modum actus, or 
for special reasons, another may be asked or admitted. 
Unless lawfully prevented, a coadjutor must perform the 
pontifical and other functions as often as he is requested 
by the bishop who would otherwise have to perform them. 
What we said above concerning the use of the throne, 
applies here also. 

A coadjutor bishop attached to the see (sedi datus) 
may exercise acts of episcopal power, with the exception 
of ordination to holy orders, in his own territory; other 
powers may be exercised in conformity with the will of 
the Holy See and the coadiutus. 

To take canonical possession of his office, the coad¬ 
jutor must present the letters of appointment to his 
bishop and chapter. In our country a coadjutor with the 
right of succession must present his papers of appoint¬ 
ment to the assembled consultors. To the bishop the 
coadjutor need show the Apostolic letters only if the 
former is mentally and physically able to perform human 
acts, i. e., if he can realize the meaning of the ceremony. 

3. The obligation of residence is incumbent on coad¬ 
jutors just as on residential bishops. But, besides the 
vacation granted by can. 338, they may occasionally ab¬ 
sent themselves from the diocese “for a short time” with 
the permission of the bishop. What “breve tempus” 
means has not been determined, but we may interpret it 
as about a week. In the vacation period and brief ab¬ 
sences are not included attendance at an ecclesiastical 
council and the visitatio liminum. For these the per¬ 
mission of the bishop may be presumed. 

4. The cessation of a coadjutorship is determined as 
follows: 





128 


ADMINISTRATIVE POWERS 


a) A coadjutor bishop with the right of succession 
becomes Ordinary of the see at the moment the bishop 
dies or goes out of office; 

b) With the office of the bishop expires that of his 
auxiliary, unless otherwise provided for in the Apostolic 
letters; 

c) If the coadjutor was given to the see, his office 
continues during the vacancy of the diocese. 

THE DIOCESAN COURT 

The diocesan court consists of those persons who 
assist the bishop or his representative in the government 
of the whole diocese. It is made up of the vicar-general, 
the official is, the chancellor, the promotor iustitiae (or 
diocesan attorney), the defender of the marriage bond, 
the synodal judges and examiners, the parish consultors, 
auditors, notaries, couriers, and beadles. 

The officialis, who holds the first place after the vicar- 
general and must be chosen by the bishop (can. 1573, 
§ 1), is a functionary distinct from the vicar-general. 

The appointment of all these officials must be made in 
writing; but before entering upon their respective offices 
they (1) are bound to take an oath into the hands of 
the bishop that they will discharge their duties faithfully 
and without human respect; (2) and when performing 
their duties, they must do so under the supervision of the 
bishop, according to the norms laid down in the follow¬ 
ing canons. Besides, they are strictly bound to secrecy 
within the limits and to the extent set by law or by the 
bishop. 

The secret they are obliged to keep is called official; 
it attaches to their office and hence might also be styled, 
with a legal term, “privileged knowledge,” i. e., knowl- 


THE VICAR-GENERAL 


129 


edge the manifestation of which cannot be legally exacted. 
The obligation arising from this secret is based upon the 
natural law, but its measure and extent may be deter¬ 
mined by positive norms, which are as broad as the mat¬ 
ter involved and as wide as the necessity of the office, 
which is subject to the law and the will of the superior. 
Therefore, if a higher or more stringent reason, e. g., 
the public welfare or a superior command, should de¬ 
mand of these officials the revealing of a secret, they 
would have to obey. On the other hand, they are never 
allowed to reveal anything to persons who are not in¬ 
volved or interested, and even to parties interested they 
cannot communicate anything which would be detrimental 
to another, unless they are legally called upon to do so by 
reason of their office. 

THE VICAR-GENERAL 66 

The historical development of this office proceeded by 
slow degrees, until it assumed its present status. Not 
all countries show the same process of evolution, and 
hence it is dangerous to generalize. The former office of 
archdeacon, to some extent, resembled that of the vicar- 
general. In Rome as well as in other large cities, one of 
the deacons was called archdeacon, a title already given 
to St. Lawrence. The office was closely connected with 
temporal affairs. The archdeacons grew in importance 
as the chorepiscopi decreased. Since the IXth century 
there was more than one archdeacon, especially in the 
larger dioceses, and they gradually seem to have absorbed 
the powers of the archpriest, which were limited to 
baptism and other spiritual matters. The archdeacons 
often acted against the bishop’s wishes, and consequently 

66 See our Commentary, Vol. II, pp. 393 


130 


ADMINISTRATIVE POWERS 


the bishops endeavored to restrict the archdeacons’ power. 
That their power was ordinary, without a mandate or 
delegation from the bishop, is nowhere stated in the 
Decretals of Gregory IX, although this has been as¬ 
serted. The Decretals call him vicar of the bishop, 
attribute to him the supervision and correction of the 
clergy, care of the sacred vestments, the office of master 
of ceremonies, and the visitation of the diocese. But 
without a special mandate of the bishop archdeacons could 
not appoint parish priests or pronounce excommunica¬ 
tion, although they could hear the quarrels of indi¬ 
viduals. Soon after the period of the Gregorian De¬ 
cretals appears an officialis, who may be identified with 
the present vicar-general. Innocent IV in the Liber 
Sextus (a. d. 1250) laid down rules for this official. 
His power is not, at least to its full extent, ordinary, 
otherwise procedure and appointment to benefices would 
not be excepted therefrom. The bishops meanwhile con¬ 
tinued their opposition to the archdeacons by appointing 
officiates foranei (rural deans), who with the permission 
of the bishop exercised a certain jurisdiction in their dis¬ 
tricts, but were removable ad nutum. In England there 
arose a distinction between the vicar-general, to whom 
the administration or voluntary jurisdiction was en¬ 
trusted, and the officialis, who had contentious or criminal 
jurisdiction. The Council of Trent paid no heed to this 
distinction, but further curtailed the powers of the arch¬ 
deacon, who subsequently became an appendage of the 
cathedral chapter with merely honorary rights, whilst 
the vicar-general became more important. In the new 
Code the officialis of former times reappears (can 1573). 

The appointment of a vicar-general is one of the free 
and uncontested rights of the bishop, and in exercising 
it he is not bound by the consent or advice of his chapter 


THE VICAR-GENERAL 


131 

or consultors, much less by insinuations or pressure on 
the part of the civil government, unless the latter has 
definite privileges under a concordat. 

The bishop can exercise the right of appointing a 
vicar-general only after the papal nomination or provi¬ 
sion has been received. 

The removal of a vicar-general depends entirely on the 
good pleasure of the bishop, who may take the office 
away, with or without reason, and without any formality, 
summary or solemn procedure. 

There should be but one vicar-general except in dio¬ 
ceses where diversity of rites or territorial extent make it 
advisable to have several. Innocent III decreed that a 
bishop should select several vicars for diverse rites and 
languages. Such vicars resemble auxiliary bishops, who 
would be able to celebrate the sacred mysteries in the 
respective rites, whilst the Code speaks of vicars-general 
only and does not mention diversity of language. The 
second reason for having several vicars-general is c( ampli- 
tudo dioeceseos? Amplitudo means extension as well 
as greatness or number of parishes and souls. On that 
score the metropolitans of most of our American arch¬ 
dioceses may safely appoint several vicars-general, who, 
per cone omit antiam, may divide their labors according 
to linguistic denominations. If a bishop governs two 
dioceses, either as two sees with equal rights ( aeque prin- 
cipalitcr unitae), or one as his proper see and the other 
as administrator, he may appoint two vicars-general, one 
for each diocese, if this should be found more expedient 
or perhaps necessary for proper administration. 

The Code (can. 367) determines the qualities of the 
vicar-general, which are modified somewhat in compari¬ 
son with the old law. 

The vicar-general must be a member of the secular 


i 3 2 ADMINISTRATIVE POWERS 

clergy, at least thirty years of age, a doctor or licentiate 
of sacred theology and canon law, or at least well versed 
in said branches, of sound learning, righteousness, pru¬ 
dence, and experience in administrative matters. 

If the diocese has been entrusted to a religious order, 
the vicar-general may be a member of that order. 

The office of vicar-general cannot be committed to the 
canon penitentiary, nor to one related to the bishop by 
blood in the first, or second touching the first, degree, 
nor, except in case of necessity, to a parish priest or any 
one occupied with the cure of souls. 

Powers of the Vicar-General 

The vicar-general, by virtue of his office, enjoys that 
temporal and spiritual jurisdiction in the whole diocese 
which the bishop, as Ordinary, possesses hire ordinario, 
except what the bishop reserves to himself, or what re¬ 
quires a special mandate from him under the law. 

Unless there is express provision to the contrary, the 
vicar-general can be executor of Apostolic rescripts sent 
to the bishop or his predecessor in the administration of 
the diocese. He also enjoys the habitual faculties granted 
by the Holy See to ordinarii locorum. 

Hence there is now no longer any doubt as to the 
character of the vicar-general’s power. It is an ordinary 
power, conferred by the act of appointment, and, there¬ 
fore, coextensive with the ordinary power of the bishop 
himself in spiritual and temporal matters. Therefore, be 
it said by the way, the custom of appointing two vicars- 
general, one in temporalibus and one in spiritualibus, is 
not to be admitted, although, as stated above, two vicars- 
general may be appointed in solidum. 


THE VICAR-GENERAL 


133 


From the ordinary power of the vicar-general the Code 
exempts that which the bishop has reserved, and that for 
which the law requires a special mandate. As to the 
first clause, it should be remembered that regula iuris 81, 
in 6°, states: “In generali concessione nequaqnam ilia 
veniunt, quae non esset quis verisimiliter in specie con - 
cessurus.” Some authors give a list of such cases, which, 
however, is of little value, since the bishop must state 
the reservations he wishes to make, otherwise the vicar- 
general acts validly and licitly in such cases. 

Of greater importance is the second clause. A special 
mandate is required under the Code in the following cases: 

1. For excardination and incardination (can. 113) ; 

2. for appointments to ecclesiastical offices (can. 152) ; 

3. for convoking a diocesan synod (can. 357, § 1) ; 

4. for appointing and investing pastors (can. 455, 

§ b 3); 

5. for removing assistants (curates) (can. 477, § 1) ; 

6. for erecting pious associations (can. 686, § 4) ; 

7. for reserving sins (can. 893, § 1); 

8. for granting dimissorial letters (can. 958, § 1, n. 2; 
can. 959) ; 

9. for permitting marriages of conscience (can. 1104) ; 

10. for consecrating sacred places (can. 1155, § O J 

11. for granting the consent necessary for the build¬ 
ing of a church (can. 1162, § 1); 

12. for authenticating relics (can. 1283, § 2; can. 
1285) ; 

13. for demanding an offering of priests for saying 
mass in a poor church (can. 1303) ; 

14. for erecting benefices or parishes (can. 14x4, § 3) ; 

15. for uniting benefices (can. 1423, § 1) ; 

16. for conferring benefices (can. 1423, § 2) ; 


134 


ADMINISTRATIVE POWERS 


17. for granting canonical institution (can. 1466, § 2) ; 

18. for permitting an exchange of benefices (can. 1487, 

§ 0 ; 

19. for inflicting ecclesiastical penalties (censures etc.) 


(can. 2220, § 2) ; 

20. for remitting penalties inflicted by the vicar-general 
as judge (can. 2236, § 3) ; 

21. for absolving apostates from excommunication 
(can. 2314, § 2). 

The vicar-general is furthermore entirely powerless: 

1. to nominate honorary canons, either collegiate or 
cathedral, from the diocese or outside the diocese (can. 


406, § 1) ; 

2. to establish or found religious congregations (can. 
49 2 > § 0; 

3. to change a removable parish into an irremovable 
one (can. 454, § 3). 


Duty and Cessation of the Office of Vicar-General 

In order to maintain the old principle that the bishop 
and his vicar-general form one and the same person and 
tribunal, the Code demands that the vicar-general report 
the chief affairs (acta) of the curia to the bishop and in¬ 
form him of what was done or is to be done for safe¬ 
guarding the discipline of clergy and people, and that he 
should not use his powers contrary to the intention and 
will of his bishop. 

The jurisdiction of the vicar-general expires by resigna¬ 
tion, by revocation on the part of the bishop, or by a 
vacancy in the episcopal see. When the bishop’s juris¬ 
diction is suspended, that of the vicar-general also ceases. 
No reason need be given for the removal, for the vicar- 


THE VICAR-GENERAL 


135 


general is removable “ad nutum episcopi” But the re¬ 
call must be duly intimated to him. 

If the episcopal see becomes vacant, the jurisdiction of 
the vicar-general ceases, because the bishop and vicar-gen¬ 
eral are considered one tribunal. However, if a common 
error should occur concerning the death of the bishop, 
the official acts performed by the vicar-general during the 
supposed vacancy would be valid. 

The jurisdiction of the vicar-general is suspended if 
the bishop is suspended from jurisdiction, or excommuni¬ 
cated, or placed under the personal interdict. But a mere 
saspensio a divinis of the bishop would not affect the 
jurisdiction of his vicar-general. 


Honorary Rights of the Vicar-General 

The honorary rights of the vicar-general are the fol¬ 
lowing : He takes precedence over the whole clergy of 
the diocese on public and private occasions, even if the 
bishop is present, and over all dignitaries and cathedral 
canons in choir as well as in chapter meetings, unless there 
is a clergyman endowed with episcopal character and 
the vicar-general lacks that character. If the vicar- 
general is a bishop, he enjoys all the honorary privileges of 
titular bishops. If he is not a bishop, he is entitled, dur¬ 
ing the time he serves as vicar-general, to all the privileges 
and insignia of a titular protonotary apostolic. As he 
takes precedence over all prelates not endowed with the 
episcopal character, he ranks above protonotaries and 
abbots, actual and titular. A vicar-general who has re¬ 
ceived episcopal consecration, ranks as a titular bishop. 
If the vicar-general is not a bishop, he is entitled to the 
privileges and insignia of a titular protonotary apostolic, 


136 


ADMINISTRATIVE POWERS 


the lowest class of the protonotaries’ college, as remodeled 
by Pius X in his Motu proprio, “Inter multiplices,” Feb. 
21, 1905. Vicars-general enjoy the title and privileges 
of this class of prelates by right during the whole tenure 
of their office, and are, therefore, properly called monsig¬ 
nori. Their dress is a black cassock, which may have a 
trail (but not unfolded), with a silk belt and two pendants 
(flocculi ) on the left, a rochet, mantelette, and biretta, all 
black. They do not genuflect but only bow to the bishop 
or the cross, and are incensed duplici ductu; they say 
Mass as ordinary priests, but have the right to use the 
bugia or hand-light. Over their daily dress, on solemn 
occasions, including audiences with the Pope, they may 
wear a silken belt with a black fringe, a hat with a band 
and tassels of black color. On their coat-of-arms they 
may place a hat of black color with ribbons or strings and 
six tassels on each side, all black (not purple or red). 

THE CHANCELLOR AND OTHER NOTARIES- 

THE EPISCOPAL ARCHIVES 

The Code attests the great care which the Church wishes 
to be taken of all important documents pertaining to dio¬ 
cesan government. She herself has set a shining example. 
From the earliest times Rome had its regional notaries, 
who were employed partly in collecting the acts of the 
martyrs, and partly in writing and preserving documents 
for the papal archives. The latter existed as early as the 
fourth century, as we learn from the Liber Pontikcalis 
that the popes preserved their official, legislative, and 
disciplinary documents in arckivo ecclesiae. The care 
of these archives required persons of ability to scrupu¬ 
lously draw up the necessary documents and watch 
over them. For this purpose a host of scribes (called 


CHANCELLOR AND OTHER NOTARIES 137 


notarii, scriniarii, chartularii) were employed at the papal 
court, who not seldom rose to dignities and held high rank 
in the pontifical family. 

All this goes to prove the importance of ecclesiastical 
archives and makes the following enactments more in¬ 
telligible. As the episcopal court forms part of the uni¬ 
versal machinery of the Church, those who are entrusted 
with the diocesan archives should bestow upon them 
minute and loving care. 

Every episcopal curia should have as chancellor a 
priest appointed by the bishop, whose chief business it is 
to file official documents in the archives and to keep them 
in chronological order and properly indexed. If neces¬ 
sary, the chancellor should be given an assistant, with the 
name of vice-chancellor or vice-recorder. The chancellor, 
by reason of his office, is also an ecclesiastical notary. 

The documents may be indexed according to parishes, 
or topically, under such heads as appointments, assistants, 
charitable institutions, marriages, ordinations, parish 
priests, religious, sisterhoods, etc. The chronological or¬ 
der had best be based on the calendar year. 

Besides the chancellor, the bishop may appoint other 
ecclesiastical notaries, who may act in all ecclesiastical 
matters, or only in judicial affairs, or in certain cases, or 
for a certain class of cases, as the bishop deems proper. 
Where there is a lack of clerics, laymen may be chosen 
for this office; but in all criminal cases of the clergy the 
notary must be a priest. 

The chancellor and the other notaries must be men of 
good reputation and beyond suspicion concerning charac¬ 
ter and trustworthiness. All of them may be removed or 
suspended by the one who has appointed them, or by his 
successor or superior, but not by the vicar-capitular, ex¬ 
cept with the consent of the chapter. They may be re- 


ADMINISTRATIVE POWERS 


138 

moved by the bishop for any or no reason and without 
appeal to higher authority. They may also be suspended 
for a time, according to the good pleasure of the bishop. 
The right of removing and suspending the chancellor and 
other ecclesiastical notaries belongs to the bishop, to his 
successor, and to his superior. 

Functions of Ecclesiastical Notaries 

These are chiefly the following: 

(1) To put in writing all episcopal acts or documents 
concerning enactments (dispositiones) , orders, and en¬ 
gagements (obligationes) , judicial summons and intima¬ 
tions, decrees and sentences, and whatever else requires 
their cooperation; 

(2) To record all important events with place and 
date,—day, month, and year; 

(3) To exhibit the acts or documents preserved in the 
diocesan archives to those who rightfully ask to see them, 
and to furnish authenticated copies of the originals. 

A notary can make official records only in the territory 
of the bishop by whom he has been appointed, and in mat¬ 
ters with which he is lawfully entrusted. The office of 
notary is thus partly that of a historiographer. Legal 
acts are the orders issued by the bishop (dispositiones ), 
e. g., concerning appointments to offices, conferences and 
arrangements for confirmation. Likewise the obliga¬ 
tiones, which imply all kinds of material and spiritual en¬ 
gagements, for instance, (1) title deeds, mortgages on 
church property, etc., (2) foundations for masses, legacies 
or bequests, especially last wills. Legal in the strictest * 
sense are those acts which belong to judiciary procedure, 
summons, intimations, sentences, etc., all of which must 


DIOCESAN ARCHIVES 


139 


be composed and carefully recorded because their validity 
might otherwise be jeopardized. 

As the historiographer of the diocese, the chancellor or 
notary should record the erection of parishes, the labors 
of priests, the work done by institutions of charity, etc. 
Historical records are very important, inter alia, for ascer¬ 
taining prescription and custom. The chancellor, there¬ 
fore, in doing his duty conscientiously, serves History, 
which “teaches by example.” 

Here we would draw attention to the necessity of using 
durable and specially prepared ink. It is an unfortunate 
fact that many, especially typewritten papers, in course of 
time become almost illegible, whereas many manuscripts 
of the ninth and tenth centuries can still be read with little 
difficulty. 

The last paragraph of our canon limits the activity of 
notaries to the territory of the bishop to whom they owe 
their appointment. This rule is based on the nature of 
episcopal jurisdiction, which is strictly limited in regard 
to territory, according to the principle: “Extra terri- 
torium ins dicenti impune non paretur.” 67 A notary who 
would attempt to perform judicial functions outside of 
his territory would act without authority, and therefore 
invalidly. Besides, a notary can write or compose no 
official documents except those for which he has been 
authorized. 


The Diocesan Archives 

The bishop should provide a safe and convenient place 
where all documents pertaining to the spiritual and tem¬ 
poral affairs of his diocese may be properly arranged and 

67 c. 2 , 6°, I, 2 . 


140 


ADMINISTRATIVE POWERS 


safely kept under lock and key. A careful inventory or 
list of the documents kept in the diocesan archives should 
be made, as well as a brief summary of each. Within 
the first two months of every year there should be added 
to the catalogue such new papers as have accumulated in 
the course of the preceding year or been found neglected 
elsewhere. 

The Ordinaries are instructed to make a careful search 
for diocesan documents and papers which may have got 
lost or scattered, and to employ every feasible means to 
have them restored to the diocesan archives. 

The archives are to be locked, and no one is allowed to 
enter the place where they are kept without the permis¬ 
sion of the bishop, or of both the vicar-general and the 
chancellor. The chancellor shall keep the key. 

No one is allowed to take papers out of the archives 
without the consent of either the bishop or the vicar- 
general ; and if any papers are taken out, they must be 
returned after three days, unless the Ordinary permits 
them to be kept for a longer time. Such permission, 
however, should be granted but rarely. Whoever takes 
a paper from the archives must leave a receipt signed in 
his own handwriting with the chancellor. 

Besides this there should be a safe or chest, capable of 
being locked and immovable (safe or safety vault), 
wherein all secret papers should be carefully preserved. 
Documents pertaining to criminal cases and moral mat¬ 
ters which have reference to deceased defendants or to 
cases settled by condemnatory sentence over ten years 
ago, should be burnt every year, only a brief summary 
being retained of each case with the text of the final 
sentence. 

Of the contents of these secret archives an inventory 


DIOCESAN ARCHIVES 


141 

or catalogue must be made according to can. 375, § 2. 

These archives must be locked with two different keys, 
one of which is kept by the bishop or Apostolic adminis¬ 
trator, the other by the vicar-general, or, if there is no 
vicar-general, by the chancellor. 

The bishop or Apostolic administrator, after having 
procured the other key from the vicar-general or chan¬ 
cellor, may, if necessary, open and inspect the secret 
archives alone and without witnesses, and after doing so, 
should again lock it with both keys. 

Canon 380 provides that the bishop, immediately after 
taking possession of his diocese, shall appoint a priest 
who, during a possible vacancy of the see or an en¬ 
forced absence of the bishop (sede impedita), shall take 
possession of the key. 

Canon 381 says that when a diocese has no Apostolic 
administrator during a vacancy or an enforced absence 
of the bishop, the custodian of the secret archives shall 
hand over the key to the temporary ruler of the diocese, 
if he be an ecclesiastic designated by the bishop; but if the 
government is in the hands of the vicar-general, he shall 
retain the key. The key shall be handed to the vicar 
capitular as soon as one is appointed, and at the same 
time the vicar-general or chancellor shall give up the 
other key to the first dignitary of the diocesan chapter 
or the oldest in rank among the diocesan consultors. 

Before the keys are handed over to the persons desig¬ 
nated in § 1, the vicar-general (or chancellor) and the 
custodian appointed by the bishop shall seal the archives, 
including the secret chest, with the seal of the episcopal 
curia. 

Canon 382 rules that the secret archives ( tabularium, 
armarium ) shall be opened or unsealed only in urgent 


142 


ADMINISTRATIVE POWERS 


cases by the vicar-capitular, in the presence of two canons 
or diocesan consultors, who shall watch that no papers 
are carried off. The vicar-capitular may examine the 
papers alone in the presence of said canons or consultors, 
but he is not allowed to take any of them away, and the 
archives must again be sealed after inspection. If the 
seals were removed and the archives opened, the vicar 
capitular must inform the new bishop why he opened 
the archives. 

Canon 383 urges the bishop to take care that all docu¬ 
ments concerning the cathedral, collegiate and parish 
churches, as well as confraternities and pious institutions, 
be made out in duplicate and that one copy be kept in the 
archives of the respective church or institution, whilst the 
other is preserved in the episcopal archives. No papers 
are to be taken from these archives except under the 
conditions stated in can. 378. 

Canon 383 refers to three other canons, viz., 470, 1522, 
and 1523, which pertain to the parish books and inven¬ 
tories procured by the diocesan trustees. Of these a copy 
must be sent to, and preserved in, the episcopal archives. 
It is evident that parishes in charge of exempt religious 
must comply with this law only in so far as parochial 
affairs are concerned. 

According to canon 384, papers in parochial and epis¬ 
copal archives which need not be‘kept secret, may be in¬ 
spected by any one who is interested in them, and authen¬ 
tic copies may be made for any one at his own expense. 
The chancellors of the various curiae, parish priests and 
other custodians, in communicating documents or copies 
of documents from the archives entrusted to their care, 
shall follow the rules laid down by legitimate ecclesiastical 
authority, and in doubtful cases consult their Ordinaries. 


EXAMINERS AND CONSULTORS 143 


EXAMINERS AND PASTORS CONSULTORS 

The Code ordains that every diocese should have 
synodal examiners and parish priest consultors, to be ap¬ 
pointed at and approved by a synod, but proposed by the 
bishop. The number of examiners and consultors is left 
to the prudent judgment of the bishop, but there should 
not be less than four, nor more than twelve. 

These officials should be elected by those attending the 
synod after the bishop has proposed several names. The 
balloting may be secret or open; but a majority of votes 
is required for election. Hence, if one or the other, or 
even all the candidates proposed by the bishop do not 
receive .the necessary majority, he must propose other 
names for those rejected, until the n-umber of appointees 
has been reached. This number is determined by the 
bishop, preferably at the synod. The maximum and mini¬ 
mum are settled by law. 

Canon 386 provides that, if any examiner or parish 
priest consultor should die or go out of office during the 
time intervening between synods, the bishop, with the 
advice of the cathedral chapter [our diocesan consultors] 
shall appoint another in his stead, and that the same rule 
shall be observed in the appointment of examiners and 
consultors, if no synod is held. 

This enactment precludes the idea that the office of 
(consultor or examiner may be attached to a parish, dig¬ 
nity, or office in such a way that the successor in that 
parish, etc., would eo ipso be examiner or consultor be¬ 
cause his predecessor held that office. 

Examiners and consultors, whether synodal or pro- 
synodal, go out of office ten years from the date of their 




144 


ADMINISTRATIVE POWERS 


appointment, or, if a synod is held, even sooner. How¬ 
ever, they may finish cases already begun, and, with due 
regard to the prescribed regulations, may be re-elected. 

Those appointed in the place of deceased or retiring 
examiners and consultors shall merely fill the unexpired 
terms. 

These officers cannot be removed by the bishop except 
for weighty reasons and with the advice of the chapter or 
the diocesan consultors. A weighty reason would be one 
that is considered sufficient for removing a pastor, or 
a crime which admits of, or demands, removal from 
office according to the penal Code (can. 388). 

Canon 389 makes it obligatory for the synodal (or pro- 
synodal) examiners to perform their task diligently, espe¬ 
cially at the examinations which are held for the appoint¬ 
ment of parish priests and in the course of procedures 
aiming at the removal of pastors. For the examination 
of candidates for Holy Orders and of priests who de¬ 
sire the faculty of hearing confessions and of preaching, 
and also of newly ordained priests for three years after 
ordination, the bishop is at liberty to employ either the 
synodal examiners or others. 

Can. 390 permits the same person to be examiner and 
consultor, but not in the same cause. Hence in the can¬ 
onical process for the removal of parish priests, one 
who holds both offices can act in only one capacity, either 
as examiner or as consultor. 

DIOCESAN CHAPTERS—CONSULTORS 

The Code is quite elaborate in treating of chapters of 
canons. This is natural in view of the historical and 
juridical importance of these corporations, which still 
form the senate of the local Ordinaries in most dioceses 


DIOCESAN CHAPTERS—CONSULTORS 145 


across the ocean. England, after the restoration of the 
hierarchy, also restored the chapters, although in a some¬ 
what modified form. This was done in accordance with 
a Roman rescript embodied in the acts of the First Provin¬ 
cial Council of Westminster, held in 1852. Among other 
things it may be mentioned that no honorary canons are 
permitted and that the Newport chapter is the same as 
the monastic chapter of the Benedictines. 68 In the 
United States honorary canons exist only in the arch¬ 
diocese of New Orleans. Honorary canons are men¬ 
tioned also in the acts of the Second Council held in Port 
of Spain, on the island of Trinidad. 69 In Canada, at the 
time of the Third Provincial Council of Quebec, in 
1863, there existed a chapter in Montreal, but none in 
the other dioceses. The S. C. of the Propaganda was 
informed of the reasons why chapters were impossible. 
These reasons are: lack of priests who, as missionaries, 
had to travel from place to place, and the poverty of the 
bishops. 70 These conditions still prevail in most Ameri¬ 
can dioceses. So far as we are aware, no petition was 
ever sent from this country to Rome, asking for chapters 
of canons,—most probably for the same reason as those 
advanced by the bishops of Quebec. But the Fathers of 
the Second Plenary Council of Baltimore exhorted the 
bishops to appoint helpers and councillors on whom they 
might unload a part of their burden. 71 The Third Plen¬ 
ary Council expressed the wish to see chapters instituted, 
but at the same time was compelled to state that condi- 

68 Coll. Lac., Ill, 923; and Appendix I-VI, ibid., 955 ff. 
Those who are interested in this subject may consult Taunton, 
The Law of the Church, 1906, pp. 151 ff. 

69 Coll. Lac., Ill, 1113. 

70 Ibid., Ill, 684 f. 

71 Acta Cone. Plen. Balt. II, n. 70 f. 


146 


ADMINISTRATIVE POWERS 


tions were not as yet favorable, and consequently en¬ 
acted that diocesan consultors should be appointed, half 
of them freely by the bishop himself and the other half 
on proposal of the diocesan clergy. 72 The Code accepts 
the fact of diocesan consultors, but the mode of appoint¬ 
ment which it prescribes deviates from the rules laid down 
in the Third Plenary Council of Baltimore, which, there¬ 
fore, under can. 6, n. 1, must be regarded as abrogated, 
or at least modified. The Code leaves the nomination or 
appointment of consultors entirely to the bishop. 

Since, according to can. 427, the diocesan consultors 
take the place of the cathedral chapter, as the bishop’s 
senate, there is some relation between both. However, 
there is not complete similarity between a cathedral chap¬ 
ter and a board of diocesan consultors. A chapter of 
canons, either cathedral or collegiate, is a corporation 
of clerics, instituted for the purpose of more solemnly 
celebrating the divine service. A cathedral chapter has 
the additional function of assisting the bishop as his 
senate and council, and in governing the diocese during 
a vacancy in the episcopal see. The primary purpose, 
therefore, is solemn divine service. Do our diocesan 
consultors share in this prerogative? They do not, and 
therefore can. 398 cannot be applied to them. 

(1) The canons of a chapter take the bishop’s place in 
the celebration of the sacred functions on certain solemn 
feasts of the year; 

(2) When the bishop celebrates pontifically, they must 
offer him the sprinkler at the entrance of the church, and 
one of them must act as assistant priest; 

(3) When the bishop is ill, the canons must administer 
the sacraments to him, and after his death, hold the 
funeral services over his body; 

72 Acta Cone. Plen. Balt. Ill, n. 17-19. 


DIOCESAN CHAPTERS—CONSULTORS 


147 


(4) They shall convoke and preside over the chapter, 
and they shall prescribe and regulate whatever pertains to 
the choir service, provided the dignity belongs to the 
chapter. 

Our diocesan consultors do not constitute a corporation 
with special statutes, and hence canons 410 and 411 are 
not applicable to them. Neither may the bishop insist on 
can. 412 with regard to assisting and serving him at the 
celebration of pontifical High Mass or pontifical func¬ 
tions in other churches of the cathedral city or its suburbs. 
The bishop may indeed invite, and even command, the 
consultors, like any other priests, secular or non-exempt 
religious, to assist him, but he has no strict right to do so, 
for the consultors are not beneficiaries, nor do they enjoy 
the honorary rights of canons. 

What remains, therefore, is that the diocesan consult¬ 
ors form the senate of the bishop and are to assist him in 
administering the affairs of the diocese. This assistance 
or help consists in giving either consent or advice. In 
order to realize the difference between consent and advice, 
can. 105 may be consulted. If consent is required by a 
law or particular statute, the superior acts invalidly if 
he goes against the votes of his advisors; if advice only is 
required (for instance, by such terms as “de consilio con¬ 
sult orum,” or (( audit o capitulo” or <( audito paroclio”) it 
is sufficient that he has heard these persons in order to 
act validly. Hence the Code demands for the validity of 
an act, even if advice only is required, that the superior 
hear or consult the persons interested. Furthermore, the 
same can. 105 requires that, if the consent or advice is 
to be given by several persons, these persons should be 
lawfully summoned and asked to give their opinion. 
Therefore, our diocesan consultors must be present in a 
body whenever any business is brought before them. I11 


148 


ADMINISTRATIVE POWERS 


other words, the bishop cannot ask the advice of each 
individual consultor, either orally or by letter, and then 
act at his pleasure. Whenever the consent of the con- 
suitors is necessary, individual questioning should a for¬ 
tiori be excluded, because that consent, as a rule, must be 
given by secret ballot. The summons must be under¬ 
stood in the sense of the Code. If, for instance, all the 
diocesan consultors are present at a retreat or banquet, 
the bishop may call them aside and ask for their opinion. 
Or if they were perchance all present at one time and in 
the same place, no special summons would be required. 
But if more than one-third of the consultors would be 
overlooked in issuing a summons, be it by mistake or in¬ 
tentionally, the proceeding would be invalid (can. 164). 

Appointment of Consultors 

Where a cathedral chapter cannot, as yet, be established 
or restored, the bishop shall appoint diocesan consultors. 
These consultors shall be priests distinguished by piety, 
exemplary conduct, learning, and prudence. 

The appointment of consultors belongs to the bishop, 
who, however, must observe the special regulations pre¬ 
scribed by the Apostolic See ( salvis peculiaribus Apo- 
stolicae Sedis praescriptis ) and the rules laid down in can. 
426. 

What the “peculiar regulations of the Apostolic See” 
are, is not expressly stated. Perhaps the reference is to 
a conference held in Rome, in 1883, for the introduction 
of cathedral chapters according to the English fashion. 
The Cardinals of the Propaganda at that time recognized 
the present system of consultors. But the Holy See re¬ 
serves the right of changing the present boards of con¬ 
sultors into, say, corporations or quasi-chapters with cor- 


APPOINTMENT OF CONSULTORS 


149 


porate rights. Should this change be made, however, it 
will be natural to expect a change in the method of elect¬ 
ing or nominating bishops, from which procedures the 
consultors are now practically excluded. 

The qualities required in consultors are almost verbally 
taken from the enactments of the Second and Third 
Plenary Councils of Baltimore. These presupposed, the 
bishop, as long as Rome does not change the present law, 
may freely name his consultors, and in doing so is not 
bound by the advice or consent of the counsellors, but 
need observe only what the Code prescribes in Can. 426. 

There shall be at least six diocesan consultors, but four 
will suffice if the number of priests in the diocese is 
small. They should all live in or near the episcopal city. 

Before they enter upon their office they must take an 
oath to discharge their duties faithfully and without hu¬ 
man respect. In large and populous dioceses the num¬ 
ber of consultors may be more than six, for the canon 
says, “at least six.” But it may never be less than four, 
no matter how small the diocese. Therefore the rule of 
the Third Plenary Council of Baltimore, that there should 
be at least two consultors, must be modified accordingly. 

A leaning towards cathedral chapters is perceptible in 
the injunction that the consultors should live in or near 
the episcopal city. The reason is not far to seek. Form¬ 
ing, as they do, the senate of the bishop, who is supposed 
to call them together from time to time, they should be 
near at hand. 

Before whom the consultors appointed have to take oath 
is not explicitly stated. However, taking into considera¬ 
tion that the profession of faith must be made before the 
Ordinary or his delegate, and at the same time before the 
other consultors, it seems proper that the oath of office 
should be taken into the hands of the bishop or his rep- 



ADMINISTRATIVE POWERS 


150 

resentative, appointed ad hoc; and if the profession of 
faith is made at the same time, the other consultors must 
also be present. To take the oath by proxy is neither 
permitted nor valid. 

The term of a consultor is three years. After the 
expiration of that term the bishop may replace a consultor 
or leave him in office, according to his good pleasure. 

If a consultor, for any reason, goes out of office dur¬ 
ing his term, the bishop, with the advice of the other 
consultors, shall appoint in his place another priest, who 
shall remain in office until the three years have expired. 

If the three years expire when the episcopal see is 
vacant, the consultors of the last term remain in office 
until the arrival of the new bishop, who must make pro¬ 
vision for a new board of consultors within six months 
from the date of taking possession of his see. 

Should a consultor die or resign during a vacancy in 
the episcopal see, the vicar-capitular or administrator, 
with the consent of the other consultors, shall name an¬ 
other, who must, however, have the approval of the new 
bishop (after being installed) in order to act as consultor. 

Functions of Consultors 

Can. 427 defines, in a general way, the functions of 
diocesan consultors. The body ( coetus ) of diocesan 
consultors, as the bishop's senate, takes the place of the 
cathedral chapter, and hence whatever the canons pre¬ 
scribe for the cathedral chapter, in relation to the gov¬ 
ernment of the diocese, either with the bishop or during 
a vacancy of the see, applies to the diocesan consultors as 
a body. 

The Code requires the consent of the consultors as a 
body ( coetus ) in the following cases: 


FUNCTIONS OF CONSULTORS 


151 

1. For restoring extinguished cathedral dignities (can. 

394. §2); 

2. for alienating church property the value of which is 
between 1,000 and 30,000 lire or francs (normally about 
$6,000) (can. 1532, § 3) ; 

3. for renting or leasing church property, if the rental 
exceeds the sum of 30,000 francs, but the lease is made 
for less than nine years; also in case the rental is between 
1,000 and 30,000 francs and the lease runs for more than 
nine years (can. 1541, § 2, n. 1, 2). 

These are the only cases mentioned in the Code which 
require the consent of the board of diocesan consultors. 

The advice of the consultors, according to the Code, is 
required in the following cases: 

1. For appointing examiners and pastors consultors 
to fill eventual vacancies in such offices (can. 386) ; 

2. for removing examiners and pastors consultors (can. 
388); 

3. for appointing to all benefices in cathedral and col¬ 
legiate chapters, except the dignitaries (can. 403; this 
does not concern our country) ; 

4. for changing a removable parish into an irremovable 
one (can. 454, § 3); 

5. for reserving cases (can. 895) ; 

6. for the appointment of the two seminary boards 
(can. 1359, § 2) ; 

7. for uniting, transferring, dividing, or dismembering 
benefices (parishes) (can. 1428, §1); 

8. for appointing boards of administrators for diocesan 
church property (can. 1520, §1); 

The advice of this board of administrators is required: 

1. for the erection of benefices or parishes, if the en¬ 
dowment is made in cash and the money has to be in¬ 
vested (can. 1415) ; 


ADMINISTRATIVE POWERS 


152 

2. for the alienation of church property, the value of 
which does not exceed the sum of 1,000 francs (can. 1532, 
§2); 

3. for leasing church property, the rental of which is 
between 1,000 and 30,000 francs, if the contract runs for 
less than nine years (can. 1541, § 2). 

The consent of this board is also required in the two 
cases mentioned above, which demand the consent of the 
consultors, viz, n. 2 and n. 3. 

The Third Plenary Council of Baltimore demands that 
the advice of the consultors be taken: 

1. For convoking a diocesan synod and promulgating 
its decrees; 

2. for dismembering a parish; 

3. for handing over a parish to a religious community 
(in which case it also requires the permission of the Holy 
See); 

4. for appointing the seminary board; 

5. for appointing new consultors and pro-synodal ex¬ 
aminers ; 

6. for alienating church property to the amount of more 
than $5,000. 

A comparison will show that n. 1 is not in conformity 
with the Code, because not only does the law not require 
the advice of the consultors, but it leaves it entirely to the 
bishop to convoke a synod (can 357). N. 6 must also 
be corrected to make it conformable to the Code. The 
rest is in accordance with the Code. 

Another, rather important, function of the consultors 
consists in electing the vicarius capitular is or administra¬ 
tor in case of a vacancy in the episcopal see, provided, 
however, there be at least five or six consultors in the 
diocese. 


REMOVAL OF CONSULTORS 


153 


Removal of Consultors 

Canon 428 provides that no diocesan consultor should 
be removed during his term of office without just reason 
and without the advice of the other consultors. 

This law is taken almost verbally from the Third 
Plenary Council of Baltimore, which enumerates some 
legitimate causes of removal, viz .: if a consultor, by 
reason of age or sickness, is unable to perform his duty, 
or if he has committed a crime that renders him un¬ 
worthy of his office; or if his reputation has suffered 
considerably through his own fault. In such cases, there¬ 
fore, the bishop may remove a consultor after having 
asked the advice of the other consultors. This means 
that no trial, not even a summary one in the strict sense 
of the term, is required. On the other hand, however, 
the bishop is not on that account relieved of the moral 
duty of at least making an investigation into charges 
brought against a consultor. 

CANONICUS THEOLOGUS AND POENITENTIARIUS 

The Code prescribes that in every cathedral church 
there should be a canon theologian, and, wherever pos¬ 
sible, also a canon penitentiary (confessor). 

The canon theologian and the penitentiary should be 
chosen from among those who are best fitted for the 
respective tasks; but, other things being equal, a doctor 
of divinity is to be preferred for canon theologian, and a 
doctor of divinity or of canon law for penitentiary. It 
is also becoming that the penitentiary shall have com¬ 
pleted the thirtieth year of age. 

It seems, however, that this law, though apparently gen¬ 
eral, really applies only to countries or churches where 



154 


ADMINISTRATIVE POWERS 


there are prebends established for that purpose, or, in 
other words, where there are chapters of canons in the 
proper sense of the word. Hence we hardly believe that 
these officials must be appointed in America. 

VACANCY OF THE EPISCOPAL SEE 

(Can. 429-444) 

The Code treats of two kinds of vacancies, vacancy de 
facto or quasi-vacancy, and vacancy de facto et iurc. 
The former goes by the name of scdes impedita, because 
the actual incumbent still holds a legitimate title to the 
see, but is momentarily prevented from exercising his 
jurisdiction, as happened at Cologne in 1837, and is 
happening under the Soviet government in Russia. 

1. Concerning sedes impedita the Code rules as fol¬ 
lows : 

a) This impediment may be caused by captivity, rel¬ 
egation, exile, or inability, and the circumstances may 
be such that the legal incumbent may not be able to 
communicate with his diocesans. If such is the case, the 
government of the diocese devolves upon the vicar-gen¬ 
eral or upon some other ecclesiastic appointed by the 
bishop, unless the Holy See sees fit to make a different 
arrangement. The bishop may, for any serious reason, 
appoint several ecclesiastics to whom the government 
may pass successively. 

b) If the vicar-general cannot act or the appointment 
of ecclesiastics as delegates of the bishop proves im¬ 
practicable, the cathedral chapter shall elect a vicar- 
capitular, who shall assume the government of the diocese 
with the powers proper to his office. 

c) Whoever exercises the government ad interim must 
report to the Holy See (S. C. Consistorialis) that the 


VACANCY OF THE EPISCOPAL SEE 155 


see is impedita and that he is temporarily in charge of 
affairs. 

d) If a bishop is excommunicated, or interdicted, or 
suspended, the metropolitan is obliged, by virtue of his 
office, to inform the Holy See. If a metropolitan incurs 
canonical censure, the senior suffragan must make report. 
If the prelate who is censured is immediately subject to 
the Holy See, the metropolitan who has been chosen 
by him “scmel pro semper,” is obliged to recur imme¬ 
diately to Rome. In the meantime the vicar-general can¬ 
not continue to exercise his jurisdiction, because his 
power is suspended during the suspension of the bishop 
(can. 371), and hence the regular business of the epis¬ 
copal curia must cease until Rome makes provision, 
which now-a-days, as a rule, can be done promptly. If 
any jurisdictional act should meanwhile be performed, 
which would give rise to a general error, the validity of 
such act could not be doubted (can. 209). 

2. As to vacancy proper, the Code rules as follows: 

The episcopal see becomes vacant by the death of the 
bishop, by his resignation, as soon as accepted by the 
Roman Pontiff, or by his transfer and privation. 

Nevertheless, with the exception of conferring ecclesi¬ 
astical benefices or offices, all the official acts of the vicar- 
general are valid until he has received sure notice of the 
death of his bishop. The acts of the bishop himself and 
those of his vicar-general are valid so long as these offi¬ 
cials have not been duly notified of the vacancy. 

Within four months from the date of the notice of his 
transfer, the bishop must repair to the diocese to which 
he is transferred, and take possession of it. From the 
date of his taking possession of the new diocese, his 
former see is vacant. Meanwhile, from the date of notice 
to that of his taking possession, the bishop 




ADMINISTRATIVE POWERS 


156 

(1) enjoys the full power of a vicar-capitular in the 
old diocese, while the power of his vicar-general ceases; 

(2) he retains all the honorary privileges of a resident 
bishop and 

(3) is entitled to all the episcopal revenues. 

The Vicar-Capitular or Administrator 

Can. 312 mentions Apostolic administrators, to whom, 
either during the occupancy of the episcopal see or dur¬ 
ing its vacancy, a canonically established diocese may be 
entrusted. The Holy See alone may appoint such an ad¬ 
ministrator, either permanently or for a definite period. 
Can. 431 refers to this provision, and consequently ex¬ 
cludes the appointment, or election of a vicar-capitular 
in case an Apostolic administrator has been appointed 
by Rome, or similar provision has been made. 73 For 
there would be interference of an inferior with a supe¬ 
rior power. On the other hand, says the law, if no such 
contrary provision was made, the whole government of 
the diocese passes to the cathedral chapter, as has al¬ 
ways been the rule wherever dioceses were properly 
organized. 

Can. 431, § 2, mentions a special arrangement by which 
the archbishop or another bishop may designate an ad¬ 
ministrator for a vacant see. Such an administrator en¬ 
joys the same faculties as the vicar-capitular, and is 
subject to the same obligations and penalties. It has been 
authentically declared that the particular laws given by 

73 “Vel aliter a Sancta Cede provision fuerit such other pro¬ 
vision might be made by appointing a coadjutor or a vicar- 
general, who would remain in office until the episcopal see was 
properly filled. 


THE VICAR-CAPITULAR 


157 

the Second Plenary Council of Baltimore with regard 
to the nomination of an administrator for a vacant see, 
are no longer in effect. 74 Consequently (a) the metro¬ 
politan or other bishop can appoint the administrator 
only by devolutive right, as set down in can. 432, § 2; 
(b) a bishop cannot appoint an administrator before his 
death to govern during the ensuing vacancy; and (c) 
the appointment, or rather election, of an administrator 
belongs by law to the board of diocesan consultors, pro¬ 
vided there be at least five or six of them in the diocese. 


Appointment of the Vicar-Capitular 

In case of a vacancy in an episcopal see, the cathedral 
chapter, within eight days from the date of notice re¬ 
ceived, must appoint a vicar-capitular, who shall govern 
the diocese in the place of said chapter. If the chapter 
also administers the revenues, it must appoint one or 
more trustworthy and industrious persons as admin¬ 
istrators thereof ( oeconomi ). 

Should the chapter, for any reason, neglect to desig¬ 
nate a vicar-capitular or oeconomus within the prescribed 
term, the right of making this appointment devolves on 
the metropolitan; and if the vacant see is a metropolitan 
see, or if the metropolitan see is vacant simultaneously 
with a suffragan see, the right of appointment passes 
to the senior suffragan. 

If a diocese immediately subject to the Roman Pontiff, 
or an abbatia or praelatura nullius (can. 285), becomes 
vacant, and the chapter fails to appoint a vicar-capitular 
or oeconomus within the stated time, the metropolitan 

74 Comm. Pont., Nov. 24, 1918; S. C. Consist, Feb. 22, 1919 
(A. Ap. S., XI, 75 f-). 


158 


ADMINISTRATIVE POWERS 


chosen “semel pro semper” may designate the said offi¬ 
cials, unless (in the case of an abbacy or prelature of reli¬ 
gious) the respective constitutions provide otherwise. 

The chapter should inform the Apostolic See of the 
death of the bishop as soon as possible, and the vicar- 
capitular should notify the same of a new election, as 
soon as made. 

“In the United States,” says Smith , 75 “no such pro¬ 
curators or administrators of the temporalities of vacant 
dioceses are appointed. Vacant sees are usually gov¬ 
erned, both in temporalibus and spiritualibus, by one and 
the same administrator.” This opinion may even now 
be held and followed, but only conditionally, vis., as long 
as the diocesan consultors are not concerned with the 
“munus percipiendorum fructuum” ; because the Tri¬ 
dentine as well as the new law speak conditionally (“si” 
or “ubi”). Hence, as long as the bishop takes care of 
the temporalities with the administrators, who must 
henceforth be chosen, and not the diocesan consultors as 
such, the election of a procurator is not required in the 
U. S. 

“Intra octo dies ab accepta notitia vacationis” implies 
any sufficiently trustworthy notice of the vacancy (either 
by death or transfer), because the notice is not further 
described. For eight days, therefore, the cathedral chap¬ 
ter, or the diocesan consultors as a body, are entrusted 
with the government of the diocese, as it was before the 
Council of Trent. 

The devolutive right becomes effective only in case 
the chapter or the diocesan consultors fail to comply with 
the law. This failure may be the result of either neglect 
or disagreement, for the Code does not state whether 
it must be a culpable or an inculpable act. In any case, 

75 Elements, I, n. 635, p. 393; cfr. our Commentary, II, 470 ff. 


THE VICAR-CAPITULAR 


159 


the metropolitan may designate a vicar-capitular, and is 
not bound to notify the chapter of his intention, but 
merely of the person elected. The new law deviates 
from the old practice with regard to the senior suffragan. 
Formerly, if a suffragan see became vacant whilst the 
metropolitan see was without an incumbent, the metro¬ 
politan chapter was entitled to name a vicar-capitular 
for the vacant suffragan see. Now the senior bishop 
designates the vicar-capitular in the cases mentioned. 

But who is the senior suffragan ? The text says “an- 
tiquior,” an attribute which has reference to the see 
rather than to the person of its incumbent, and therefore 
the senior bishop is the one whose diocese was erected 
before the others: “prior in tempore, potior in hire 

The right of the metropolitan extends also to such 
vacant sees as are immediately subject to the Roman 
Pontiff and to abbatiae nullius. Exception, however, is 
made concerning the latter whenever the Constitutions 
of the religious provide otherwise. These generally 
determine that an administrator be chosen and admit no 
interference from outside. The clause safe-guards the 
exemption as well as the authority of the Holy See 
to which such Constitutions must be submitted for 
approval. 

The new law is very emphatic in demanding that only 
one vicar-capitular be appointed; if this law were disre¬ 
garded, the election—and we suppose also the appoint¬ 
ment made by the metropolitan—would be null and void. 

The manner of voting at the election, when performed 
by consultors, must be the same as that prescribed for 
elections proper. An absolute majority is required to 
elect. Hence, if the number of electors is six, four votes 
must be cast for the same person. Any vote which is 
extorted, or which is not secret, certain, absolute, and 



160 ADMINISTRATIVE POWERS 

determined is invalid, and must be subtracted from the 
total. Thus, if one vote out of six were null and void, 
there would remain five valid votes, of which the can¬ 
didate would have to obtain three, in order to be elected. 

Qualities of the Vicar-Capitular 

No cleric can be validly elected to the office of vicar- 
capitular unless he is a priest, thirty years of age. No 
one who has been elected, nominated or presented for 
the vacant see may be chosen vicar-capitular. Further¬ 
more, the vicar-capitular must be a doctor or licentiate 
of divinity or of Canon Law, or, at least, well versed 
in these sciences; besides, he must be distinguished by 
probity of life, piety, sound doctrine, and prudence. 

If in any case the conditions prescribed in § i have 
been set aside, the metropolitan, or if the metropolitan 
see be vacant or it be question of electing a vicar-capitular 
for the metropolitan see, the senior bishop of the diocese, 
shall designate the vicar-capitular, after having been 
duly informed of the election; all the official acts of the 
so-called chosen vicar are ipso iure invalid. 

These three conditions affect the validity of the elec¬ 
tion and, if neglected, according to § 3, give the right of 
appointing the vicar-capitular to the metropolitan or 
senior suffragan. The latter, however, cannot proceed 
to the appointment unless he has been informed that 
the election was illegal; in other words, he must have 
verified the fact that the chosen candidate suffers from 
one of the three impediments stated in § 1. 

As in the case of the eight days having elapsed, the 
devolution takes place only for this one time (pro ea 
vice), and the metropolitan or senior suffragan cannot 
claim the right of interfering with the next election of a 


THE VICAR-CAPITULAR 


161 


vicar-capitular to the same see. Hence, if those who are 
authorized to supply the illegal election, should themselves 
choose an unfit candidate, the right of election would re¬ 
vert to the chapter. For the metropolitan and senior 
suffragan, too, are bound by the law. The reason for 
this assertion is that the law which urges all is nullifying 
and the law depriving the chapter of the right of election 
is penal. 


Rights or Powers of the Vicar-Capitular 

The ordinary jurisdiction of the bishop in spiritual as 
well as temporal affairs, first passes to the chapter and 
then to the vicar-capitular, except in regard to matters 
which the law has expressly excepted. 

Therefore, first the chapter, and then the vicar- 
capitular, enjoy all the powers enumerated in can. 368, 
§ 2, and besides, have the faculties to grant the exercise 
of pontificals to any bishop; nay, if the vicar-capitular is 
endowed with the episcopal character himself, he may 
perform pontifical functions, though without the throne 
and canopy. 

The vicar-capitular and the chapter are not allowed to 
do anything that might prove prejudicial to the diocese or 
to episcopal rights; especially are the vicar-capitular and 
others, either capitulars or outsiders, clerics or laymen, 
forbidden, either themselves or through others, to with¬ 
draw or destroy, conceal or change documents of the 
episcopal curia. 

Nothing is to be changed during the vacancy of a see. 

The chapter, in appointing a vicar, cannot reserve to 
itself any part of the jurisdiction, or limit the term of 
his office, or make any other restrictions. 

The Code, therefore, grants ordinary powers to the 


ADMINISTRATIVE POWERS 


l62 

administrator. But it also expressly forbids him to 
perform certain acts. These are mentioned in several 
canons, which we here put together. Besides, the Code 
allows the administrator to exercise a number of rights 
only under certain conditions; these, too, are placed side 
by side here. It should also be noted that the Code 
(can. 315, § 2) grants an Apostolic administrator who is 
appointed only for the time being (ad tempus datus) 
the same powers as a vicar-capitular enjoys. 

I. The conditional powers of the vicar-capitular, ac¬ 
cording to the Code, are these: 

1. He may grant excardination and incardination after 
a year’s vacancy of the episcopal see, but only with the 
consent of the chapter or the board of diocesan con- 
suitors (can. 113). 

2. If a diocesan consultor dies or resigns his office, 
the vicar may, with the consent of the other consultors, 
appoint another in his place (can. 426, § 5). 

3. He may appoint a pastor to a vacant parish, if the 
episcopal see has been vacant for one full year (can. 
455. § 2, n. 3; can. 1432, § 2), and no exception is made 
in law as to parishes to be conferred by concursus. 

4. He may grant dimissorial letters to secular clerics, 
with the consent of the chapter or the board of diocesan 
consultors, after the vacancy of the episcopal see has 
lasted one year. Within the first year of vacancy he may 
grant them only to arctati, namely, such as have already 
received, or will receive within the year, an ecclesiastical 
benefice which requires ordination (can. 958, § I, n. 3). 
If the vicar-capitular or administrator is a bishop, he 
may confer orders whenever he is entitled to grant di¬ 
missorial letters (can. 959). 

As to the appointment or removal of assistants 
(curates), the vicar-capitular is entirely free, and he may 


THE VICAR-CAPITULAR 


163 


also ratify the election or presentation of a candidate to 
a vacant parish, and grant canonical institution (can. 455, 
§ 2, n. 1 and 2). 

II. A vicar-capitular is forbidden by law: 

1. to convoke a diocesan synod (can. 357, § 1) ; 

2. to appoint honorary canons (can. 406, § 1) ; 

3. to convert removable into irremovable parishes (can. 

454 , § 3) > 

4. to found religious congregations (can. 492, § 1) ; 

5. to establish confraternities or consent to their erec¬ 
tion or aggregation (can. 686, § 4); 

6. to reserve sins (can. 893, § 1) ; 

7. to fix the amount of alms for a poor church (can. 

1303. § 3); 

8. to unite parishes (can. 1423, § 1) ; 

9. to permit an exchange of offices or benefices (can. 

1487, § 1); 

10. to remove the defensor vinculi or the promotor 
iustitiae (can. 1590, §1); though he may, with the 
consent of the chapter or board of diocesan consultors, 
remove the chancellor and notary (can. 373, § 5). 

We may add certain prohibitions not expressly men¬ 
tioned by the Code, but agreed upon by canonists. A 
vicar-capitular 

1. Cannot grant indulgences and must abstain from 
using the faculty of granting such, if he possesses it. 

2. He cannot alienate any church property of value, 
as this might prove prejudicial to the successor; but he 
may conclude a favorable financial deal, for instance, 
getting money at a lower rate of interest or converting 
bonds into more profitable ones. 76 

76 Trid., Sess. 7, c. 10, De Ref.; Benedict XIV, De Synodo 
Dioec., II, 9, 7. See c. 62, C. 12, q. 2; c. 1 , X, III, 9; Bizzarri, 
follectanea, p. 40 f. 


ADMINISTRATIVE POWER 


164 

3. He cannot appoint a vicar-general, although 
he may, for reasons of sickness or protracted absence, 
appoint a locum tenens with all the faculties which he 
himself possesses. 77 

The vicar-capitular, after having pronounced the pro¬ 
fession of faith (can. 1406 ff.), immediately obtains 
jurisdiction and needs no confirmation from any one. 
His profession of faith must be made before the chapter. 
Whether its accidental omission would invalidate his 
jurisdiction and thus render his official acts null and 
void, is not stated in our canon or in the one treating 
of the professio fidei, or in the penal code. Hence, 
salvo meliori iudicio, we should say that the clause 
u editd fidei professione” (ablative absolute) does not af¬ 
fect the jurisdiction itself. 

Can. 2403 rules that, in case the vicar-capitular culp¬ 
ably neglects to make the profession of faith, he forfeits 
every claim to the income, but does not incur loss of 
the office. 

Concerning precedence and honorary rights , whatever 
has been enacted about the vicar-general must be applied 
to the vicar-capitular. 

The vicar-capitular is obliged to residence and to the 
application of the Mass according to can. 338 f. 

Unless otherwise provided: 

(1) The vicar-capitular and the procurator are en¬ 
titled to a decent support, determined by the provincial 
council or by legitimate custom, and taken from the 
episcopal revenues or other sources. 

(2) All other revenues accruing during the vacancy of 
the see, if they are of a kind that would belong to the 
bishop in case the see were not vacant, must be reserved 
for the future bishop. 

77 Schmalzgrueber, lib. I, tit. 28, n. 32. 


THE VICAR-CAPITULAR 


165 


Removal from and Cessation of Office 

The removal of a vicar-capitular is reserved to the 
Holy See. In case a vicar-capitular or administrator 
should wish to resign, his resignation must be made in 
authentic form and presented to the chapter, whose ac¬ 
ceptance, however, is not required for the validity of 
the act. After the resignation, death or removal of the 
vicar-capitular or procurator, a new one may be ap¬ 
pointed by the same chapter, according to the rules laid 
down in can. 432. 

The office of vicar-capitular or procurator ceases im¬ 
mediately after the new bishop has taken possession of his 
see, according to can. 334, § 3. 

The office of vicar-capitular having ceased ipso lure 
upon the new bishop’s taking canonical possession of his 
diocese, the bishop must demand an account of the 
chapter, the vicar-capitular, the procurator, and other 
officials appointed during the vacancy, concerning their 
office, jurisdiction, administration, and charges; and he 
must proceed against such as have been delinquent in the 
discharge of their duties, even though they had given 
an account to, and been absolved or acquitted by, the 
chapter. 

The aforesaid officials shall also render an account 
to the new bishop of such ecclesiastical documents as may 
have come into their hands. 


INCARDINATION 


166 


SECTION IV 

POWERS CONCERNING PERSONS 

After mentioning the different coadjutors endowed 
with jurisdiction in the external forum and the organiza¬ 
tion of the diocese, the Code proceeds to treat of ecclesi¬ 
astical persons who are indeed also aids in the manage¬ 
ment of the diocese, but have no jurisdiction, properly so- 
called, in the external forum. There are four classes of 
ecclesiastics who are more or less closely connected with 
the administration of a diocese: the deans, the pastors, 
the curates or assistants, and the body of religious. 

Here, however, is the place to mention what the Code 
provides concerning 

INCARDINATION IN A DIOCESE 

(Can. m-117) 

Incardination takes place by the conferring of the first 
tonsure by the epise opus proprius. But who is the 
episcopus proprius? The bishop in whose diocese the 
one to be tonsured has his domicile, a quasi-domicile 
not being sufficient for ordination—which is rather 
strange under present conditions, especially in view of 
the fact that many seminarians have no domicile what¬ 
ever, but only a quasi-domicile in the place where they 
study. Hence the question: Who is the episcopus pro¬ 
prius of such tonsurandi who have only a quasi-domicile ? 
The answer is: 1 The Ordinary in whose diocese the or¬ 
dination takes place, provided the ordinand acquires a 

1 See our Commentary, Vol. IV, p. 424. 


INCARDINATION 


167 

domicile by taking oath according to can. 956. The 
spectre of “Speculatores” is still hovering over some 
minds, although the times have radically changed. The 
only reasonable solution would be that the bishop, before 
conferring tonsure, promised in writing to adopt the one 
to be tonsured, and then either himself, or another 
bishop, with the dimissorials of the adopting bishop, con¬ 
ferred the tonsure. 

From the date of the reception of the tonsure incardi- 
nation is in operation and is supposed to be permanent 
and unconditional, at least for the secular clergy. In 
case of secularized religious the Code (can. 641) allows 
a conditional and presumed incardination. 

If a clergyman, then, wishes to enter a diocese other 
than the one for which he was adopted, or into which he 
had been incardinated, what is to be done? 

This can only be effected for reasons of usefulness or 
necessity on the part of the adopting diocese, always safe¬ 
guarding the title of ordination. Besides, there are cer¬ 
tain formalities to be observed. These are: (a) the 

documents of perpetual and absolute excardination and of 
perpetual and absolute incardination, the excardination 
to be accompanied by a written information, if nec¬ 
essary secret, as to the clergyman’s birth, life, conduct 
and studies, especially if there be question of incardinat- 
ing one of a different language and nation. The ex- 
cardinating bishop is bound in conscience to make a truth¬ 
ful statement; (b) the clergyman to be incardinated must 
give oath in presence of the incardinating Ordinary or 
his delegate to serve the new diocese perpetually. Ex¬ 
cardination does not take effect until incardination in the 
other diocese has followed. 

These formalities are not required in case the Ordi- 


168 POWERS CONCERNING PERSONS 


nary bestows on a cleric of another diocese a residential 
benefice : a ) with the written consent of his own Ordi¬ 
nary, or J 3 ) with the written permission of permanent 
leave of absence (can. 114). 

Incardination and excardination papers cannot be 
granted by the vicar-general without a special mandate, 
nor by the vicar-capitular (administrator), except after 
a vacancy of the episcopal see lasting over a year, and 
even then only with the consent of the chapter or t ie 
diocesan consultors (can. 113). 

Concerning incardination of ex-religious the Code en¬ 
acts in can. 641 thus: The Ordinary may adopt secular¬ 
ized religious either unconditionally or on trial. If re¬ 
ceived unconditionally, the religious is eo ipso incardinated 
in the diocese; if on trial for three years, this trial may be 
protracted for three more years, but no longer. After 
the lapse of the trial term the religious becomes ipso facto 
incardinated, unless he was dismissed before the lapse. 
This new law went into effect May 19, 1918, and runs 
from this date, no matter whether the Ordinary gives 
notice or not. 

Having stated the enactments of the Code, it will not 
be amiss to make a comparison with the decrees of the 
Third Plenary Council of P>altimore (nn. 62 ff.). There 
a distinction is drawn between a formal and a presumed 
incardination. The formal incardination consists in the 
document signed by the bishop incard mating a strange 
clergyman, upon the reception of papers of recommenda¬ 
tion and excardination; this incardination was not to be 
given until the trial term of three or five years had 
elapsed. The presumed incardination took place after 
the lapse of said trial term, ipso facto in case the incardi- 
nating bishop had omitted to issue the incardination 
paper. This was the law in the U. S. until the Decree 


INCARDINATION 


169 

“A primis” was promulgated, July 20th, 1898, by the C. 
C. Concilii. 2 It was but natural that this decree should 
provoke some doubts, since it appeared to do away with 
the enactments of the Council of Baltimore in the matter 
of incardination. The “A primis” demanded what the 
Code now lays down, namely, written, perpetual and ab¬ 
solute incardination together with an oath. 3 The S. Ro- 
mana Rota, in a particular decision, had insisted upon the 
necessity of the oath. 4 Thereupon Bishop Wehrle of 
Bismark, N. Dak., submitted to the S. C. C. several dubia, 
which turned chiefly upon the condition of the oath. 5 
More important is another decision of the S. C. C. It 
was asked whether the incardinatio praesumpta admitted 
by the Council of Baltimore had been abolished or ab¬ 
rogated by the decree “A primis”? The answer was “Af¬ 
firmative” 8 It is evident that the formal incardina¬ 
tion, with its experimental or probational character, had 
not been declared null and void by the promulgation 
of “A primis.” This is very noteworthy, because, 
comparing the Code with this decree, we find that 
there is no substantial difference between them. Hence, 
with all due reserve, we may say that this kind of 
experimental incardination, provided all the other ele¬ 
ments or requirements concur, is even now admissible in 
our country. For we are allowed to construe it, viz., the 
formal incardination as proposed by the Council of Balti¬ 
more, thus: The incardination is legally perfect when 
the first papers are issued; it is, in other words, perfect 

2 See Collectanea S. C. P. F., 1907, n. 2011. 

3 To us this oath appears somewhat superfluous, since it is 
taken at the ordination, and then ipso facto transferred to the 
other diocese. 

4 See Acta Ap. Sedis, 1912, Vol. IV, 249 flf. 

5 See Acta S. Sedis, Vol. 39, 486; A. Ap. S., 1913* Vol. V, 37. 

0 See A. Ap. S. 1913, Vol. V. 37 f- 


170 POWERS CONCERNING PERSONS 


in the order of intention, though incomplete in the order 
of execution; or perfect in fieri, not in facto esse. That 
these papers, or the act of incardination, do not become 
perfect or complete, may be caused by the clergyman in 
question, if he does not conduct himself as he is expected 
to, and hence may ascribe it to himself if the effect is not 
produced by the cause. 

Rural Deans 

(Can. 445-450) 

The Code does not make it imperative for the bishop 
to appoint rural deans, but very plainly insinuates, or pre¬ 
supposes, that they be appointed. Their appointment as 
well as removal rests entirely with the bishop, who in 
this matter needs neither the advice nor the consent of 
the consultors. The bishop, or a provincial or diocesan 
synod, may endow them with special faculties. Thus, 
according to can. 899, the Ordinary should grant to them 
the faculty of absolving in the cases which the bishop 
has reserved to himself, and give them the power of sub¬ 
delegating, especially for the more remote districts. 

At least once a year the rural dean must submit to the 
Ordinary an account of the condition of his district. In 
this report he shall freely point out the good that was 
done, as well as the evils that have crept in, scandals and 
the means employed to uproot them, and make suggestions 
as to what had best be done to eradicate abuses. 

On the days assigned by the bishop each rural dean 
must call the priests of his district to a meeting or con¬ 
ference, at which he must preside. If several conferences 
are held in different places of his district, the dean must 
see to it that they are properly conducted. 

The rural deans have no power to dispense from the 


PASTORS 


171 

banns, unless the synod, or the bishop, has communicated 
this power to them. It should be added that deans have 
no powers in the external forum, nor are they superior 
to the vicar-general. Hence, if the Ordinary, the bishop 
or his vicar-general, should wish to preside at a pastoral 
conference, a dean would have to cede the presidency, 
not only because the right of precedence belongs to 
the Ordinary (can. 370), but also and mainly on 
account of the Ordinary’s superior dignity and power. 
By appointing deans the Ordinary has not lost or cur¬ 
tailed his power over the entire diocese. Hence the 
“debet” must be understood with due subordination to the 
legitimate authority. The bishop should, as a rule, leave 
the presidency to the deans. 

Pastors 
(Can. 451 - 470 ) 

It has already been remarked that bishops are obliged to 
divide their dioceses into parishes and entrust these to 
priests, called pastors, who exercise the care of souls un¬ 
der the authority of the local Ordinary. Upon the Ordi¬ 
nary, therefore, devolves the right and duty to appoint 
pastors, and to watch over their conduct. The Ordinary 
may also grant exemption from parish organization. 

1. The Appointment of Pastors 

With the exception of parishes reserved to the Holy 
See, the right of appointing and investing parish priests 
belongs to the Ordinary of the diocese. All contrary cus¬ 
toms are rejected by the Code, with due regard, however, 
to the privilege of election or nomination. 

The Ordinary shall, first and above all, assure himself 


172 


POWERS CONCERNING PERSONS 


as to the qualifications of the candidate. The law re¬ 
quires that a pastor shall be a priest of good moral char¬ 
acter, endowed with knowledge, zeal for souls, prudence, 
and all the other virtues and qualities required either by 
common or particular law for the proper government of 
a parish. 

Therefore, the Code earnestly admonishes Ordinaries 
of their strict obligation to confer vacant parishes only on 
those whom they deem fittest without personal favoritism. 

In forming his judgment as to fitness of a candidate, 
the Ordinary should consider, not only learning, but also 
the other qualities that are necessary to govern a parish 
successfully. 

Hence 

(1) he shall not neglect to inspect the documents in the 
diocesan archives, if there are any, that have reference 
to the clergyman to be appointed, and, if he deems it 
expedient, shall prudently seek to obtain secret informa¬ 
tion, even from outside the diocese; 

(2) he shall faithfully comply with can. 130, § 2 (con¬ 
cerning examinations) ; 

(3) he shall subject the candidate to an examination 
in the presence of the synodal examiners; however, he 
may, with the consent of the examiners, dispense any 
priest from this examination who has distinguished him¬ 
self in theology. 

There should not be less than three examiners, and the 
Ordinary should subject to an examination all the candi¬ 
dates who are to be promoted to a parish, except in the 
case stated in can. 459, with regard to the examination in 
theology. However, in case of a promotion or transfer 
to another parish, the examination passed for obtaining 
the first parish will be sufficient. On the other hand, 


PASTORS 


173 


neither the examination passed for the promotion to sacred 
orders (can. 996), nor the one to be made annually for 
the space of three years (can. 130), is sufficient, or a 
substitute for the examination to be passed for promotion 
to a parish, unless the examination made before ordination 
comprised all the questions concerning the administration 
of a parish. 7 

This mode of examination differs, to some extent at 
least, from that called concursus, which is twofold, spe¬ 
cial or general. The latter was proposed by the German 
bishops at the Vatican Council, and is held once a year 
for all candidates to be promoted to parishes, the subject- 
matter being chiefly knowledge, while the other qualities 
are to be examined into at the time a parish becomes va¬ 
cant. The special concursus is the one described in the 
Constitution of Benedict XIV, “Cum Hind” which was 
adopted by the Third Plenary Council of Baltimore 
for all irremovable rectors. Since the Code prescribes 
this mode, and consequently does not abolish the con¬ 
ciliar decree, this Constitution must be followed when 
an irremovable parish is to be filled. Its substance is: 

(1) When a parish becomes vacant, the bishop shall, 
by a public edict, fix a suitable day for the holding of the 
competitive examination, at the same time notifying all 
who wish to make the concursus, that they must, within 
this time and before the day set apart for the concursus, 
file with the diocesan chancellor judicial or extra-judicial 
testimonials of their fitness, merits, qualifications, etc. 
After the expiration of this time, no testimonial or docu¬ 
ment of any kind can be received. 

(2) The chancellor must draw up a written summary 
or synopsis of all the documents or testimonials presented 

7 Pont. Comm., Nov. 24, 1920 (A. Ap. S., XI, 574). 


174 POWERS CONCERNING PERSONS 


by the various candidates, give one copy of this synopsis 
to the bishop, and one to each of the examiners, who in 
approving candidates after the examination must take 
into account, not merely their learning, but also their 
other merits and qualifications. 

(3) In case a rejected competitor appeals either a mala 
relatione examinatorum or ab irrationabili iudicio episcopi, 
he must produce before the judge of appeal all the acts 
or records of the examination held in the first instance, 
which must be given him for that purpose by the chan¬ 
cellor. The judge ad qucm must pronounce his decision 
solely and exclusively on the strength of the records or 
acts of the first concursus. Hence he cannot order any 
new concursus, nor receive any documents or testimonials 
other than those contained in the acts of the first instance. 

(4) If the judge ad quem pronounces sentence in con¬ 
formity with the appointment of the Ordinary, that is, 
in every respect against the appellant and in favor of the 
competitor appointed by the bishop, no further appeal is 
allowed, and the controversy becomes res iudicata. But 
if he reverses the action of the Ordinary, the competitor 
appointed by the bishop can appeal to the higher judge, 
whose sentence shall be final and unappealable. 

(5) The concursus itself must be held in the follow¬ 
ing manner: 

(a) The same questions must be proposed to all com¬ 
petitors, as also the same case (moral, liturgical, canon¬ 
ical, pastoral) and the same gospel text upon which they 
must compose a short sermon; all these must be dictated 
at one and the same time, and the same length of time 
must be allowed for the answers. 

(b) All must sit in the same room , and no one be al¬ 
lowed to leave before he has completed his composition. 

(c) They must write the answers in Latin, in their own 


PASTORS 


i75 


hand, and sign them. The sermon may be composed in 
the vernacular. 

(d) All answers, as well as the sermon, as soon as 
offered, must be signed by the presiding chancellor, the 
examiners and the bishop or his vicar, if the latter was 
present at the examination. 

(e) The judgment as to the sufficiency of the answers 
must be passed by the examiners at the place of examina¬ 
tion, and must include a verdict on each candidate’s con¬ 
duct, virtues, and prudence. But the examiners must 
give only an objective statement as to the ability of the 
candidate, and leave the judgment as to the greater or 
lesser degree of fitness to the bishop. 

In the U. S., according to the Third Plenary Council of 
Baltimore (n. 36, n. 43), only those priests can be ad¬ 
mitted to the concursus who have been laudably engaged 
in the sacred ministry for at least ten years in the diocese, 
and within that time have given proof of their ability to 
govern a parish spiritually and temporally, either in the 
capacity of simple rectors, or in some other way. 

The first appointment to a newly created irremovable 
parish may be made by the bishop without a concursus. 

2. Different Kinds of Pastors 

The Code distinguishes various kinds of pastors, ac¬ 
cording to the office, the nature of parishes, and the 
holders thereof. 

1. As to the office, pastors are priests who govern a 
parish or a quasi-parish, which latter is a congregation of 
the faithful existing in Apostolic vicariates and prefect¬ 
ures (can. 216, § 3). There are vicars who are endowed 
with full parochial rights, i. e., who have actual charge of 
a parish, while the habitual right is vested in a chapter or 


176 POWERS CONCERNING PERSONS 


monastery, or who exercise parochial functions because 
of the vacancy of a parish or the total inability of the 
incumbent. 

2. As regards the nature of a parish, it may be incor¬ 
porated or not incorporated with a religious corporation; 
hence the distinction between habitual and actual pastors. 
All pleno iure incorporations must be made by the Apos¬ 
tolic See. Parishes incorporated pleno iure are those 
which belong to ecclesiastical institutes in temporal and 
spiritual matters, while parishes semipleno iure incorpo¬ 
rated are controlled by an ecclesiastical body, either as to 
temporalities only, or as to the spiritual administration 
only. The distinction between removable and irremov¬ 
able parishes is based on the more or less permanent char¬ 
acter of the incumbent. However, it is but fair to say 
that this permanency has been considerably modified, 
first by the “Maxima cura” (1910), and now by the Code, 
which says (can. 454) that a priest who is placed over a 
parish as rector should be permanent. This permanency 
does not, however, imply that he cannot be removed ac¬ 
cording to the law. 

All parish priests are not permanent in the same de¬ 
gree; the irremovable rectors are permanent in a higher, 
the removable rectors in a lower degree. 

Irremovable cannot be converted into movable parishes 
without an Apostolic indult, whereas removable parishes 
may, with the advice of the cathedral chapter, be declared 
irremovable by the bishop, but not by the vicar-capitular. 
All newly erected parishes are irremovable, unless the 
bishop is compelled by special circumstances of place or 
person to declare them removable. 

3. With regard to the holding of parishes, they are 
either secular or religious, according as they are governed 
by secular or religious priests. What was said above 


PASTORS 


177 


concerning incorporation pleno iure need not be repeated 
here. But we may add that the parties concerned in 
such a transaction should clearly designate the boundary 
lines of the parish to be handed over to religious and 
carefully agree on all conditions, so that no conflict 
may arise. Both the bishop and the religious superior 
should sign the document and forward it to the S. Con¬ 
gregation of Religious, who will deal with the S. C. 
of the Council concerning the matter. The document 
signed by the Roman authorities should be duplicated, 
so that the diocese as well as the religious institute 
may have a copy. If the Apostolic See unites a parish 
with a religious house only quoad temporalia, the religious 
receive the material benefit thereof, but the superior must 
present to the bishop for canonical institution a secular 
priest, to whom the necessary support or salary must be 
assigned. On the other hand, if a parish is incorporated 
with a religious community pleno iure by the Holy See, 
the religious superior may designate one of his own sub¬ 
jects to take charge; but the local Ordinary has the right 
to subject the appointee to an examination and to give 
him the canonical institution (can. 1425). 

It may be added that while the Code does not forbid 
the local Ordinary to entrust a religious community with 
the temporary administration of parishes, it does not wish 
to see this made the rule. Secular benefices are intended 
for the secular clergy. Can. 606, § 2, moreover, plainly 
states that religious are not allowed to remain outside 
their houses for more than six months, except for pur¬ 
poses of study; if they wish to stay longer, they need a 
papal indult. Hence if they hold a parish that is not 
their own by virtue of pleno iure incorporation, they cer¬ 
tainly need a papal indult to remain there, outside their 
religious house, for more than six months, nor could any 


178 POWERS CONCERNING PERSONS 


religious be obliged to stay in such a parish by virtue of 
obedience. 

Quasi-pastors, vis., those of the secular clergy who are 
under the S. C. of the Propaganda, are appointed by the 
Apostolic vicar or prefect, after hearing his counsellors 
(can. 302). 

3. Fulfilment of Pastoral Obligations 

The local Ordinary is mainly responsible for the ful¬ 
filment of the duties incumbent on the pastors of his 
diocese with regard to the exercise of parochial rights, 
the administration of the Sacraments in accordance 
with the law and ritual, the office of preaching and 
teaching the catechism, the care of the sick, and charitable 
works. There are three duties which demand his special 
attention. 

a) As to residence. Every pastor is obliged to reside 
in a parish house near his church. However, the Ordi¬ 
nary of the diocese may, for a just reason, allow him 
to live elsewhere, provided his home is not so far away 
from the parish church that the performance of his pas¬ 
toral duties would suffer therefrom. 

The pastor may take a two months’ vacation every 
year, either continuous or interrupted, provided there be 
no grave cause which, in the judgment of the Ordinary, 
would require either a prolongation or shortening of this 
term. 

The days of the yearly retreat (can. 126) are not in¬ 
cluded in the two months’ vacation. 

If a parish priest wishes to be absent from home for 
more than one week, he must have a legitimate excuse 
and the Ordinary’s written permission, and, besides, 
provide a substitute approved by the Ordinary. If the 


PASTORAL OBLIGATIONS 


179 


parish priest is a religious, he needs in addition, the per¬ 
mission of his superior, and his substitute must be ac¬ 
ceptable to both the Ordinary and the superior. 

Should a parish priest, for a grave reason, be suddenly 
called away and compelled to be absent from home for 
more than a week, he must inform his Ordinary as soon 
as possible in writing, stating the reason for his leave and 
the name of his substitute, and abide by the Ordinary’s 
commands. 

Even during a shorter absence the pastor must provide 
for the wants of the faithful committed to his care, es¬ 
pecially if peculiar circumstances require it. 

b) As to the application of the Mass pro populo. The 
Code rules that a parish priest is obliged to apply the Mass 
for his people, the same as a bishop (can. 339) ; a quasi¬ 
pastor must follow the rules laid down in can. 306. 

A pastor who governs two parishes which are united 
deque principcditer, or one as his own and the other as ad¬ 
ministrator, is obliged to apply but one Mass for the peo¬ 
ple. 

The Ordinary of the diocese may, for a just reason, 
grant permission to any parish priest to apply the Mass 
for the people on another than the prescribed day. 

A pastor should say the Mass for the people in the 
parish church, unless circumstances compel him to say it 
elsewhere. 

A pastor who is legitimately absent from home may 
either himself apply the Mass for the people at his actual 
place of abode, or have it said at home by a substitute. 

In dioceses which have no canonically erected parishes, 
there is no obligation to apply the Mass pro populo , nor 
is the bishop entitled to impose this duty, either by pre¬ 
cept or synodal enactment, on pastors who are ad¬ 
ministering parishes which are not canonically erected. 



180 POWERS CONCERNING PERSONS 


To do so would be acting not only beyond, but against, the 
law and its authentic interpretation. 

c) As to parish hooks. These should be examined at 
the time of the canonical visitation, and, at the end of 
each year, a copy of all parish books, except the status 
animarum, sent to the diocesan chancery. The parish 
seal and the archives are also to be inspected at the dio¬ 
cesan visitation (can. 470). 

4. Exemption from Parish Organization 

The bishop for just and weighty reasons may grant 
quasi-exemption from parochial rights and care to reli¬ 
gious families and pious houses. This power is a re¬ 
minder of a time when the bishop was considered the 
parish priest of the whole diocese. The ruling of the 
Code is not entirely new, for the semi-public oratories 
of brotherhoods and sisterhoods have long enjoyed cer¬ 
tain privileges which curtailed the pastor’s rights. How¬ 
ever, in these general terms the principle laid down in 
§ 2 of canon 464 is of comparatively recent date. After 
the division of dioceses into parishes, the bishop was no 
longer considered the parochus of the whole diocese, but 
only of the cathedral. Hence the Code binds the bishop 
to “just and weighty reasons ” for withdrawing any one 
from the care of the pastor. Such reasons would be: the 
merits of a religious community and their distinguished 
work for the common welfare; peace and tranquillity 
from vexations by the parish priest; suspicion or undue 
interference by the pastor with the internal and domestic ■■ 
affairs of the community, etc. The parish priest may 
appeal to the Holy See, but he has no right to demand the 
bishop’s reasons, for the bishop is not responsible to a 
pastor. We may add that the fact that the canon names 




ASSISTANTS AND RECTORS 


181 


the bishop, not the Ordinary, appears to exclude vicars- 
general or vicars-capitular from granting this exemption. 

It is evident that the law here intends only the exemp¬ 
tion of such religious houses as would otherwise not en¬ 
joy this favor. The houses of regulars and other exempt 
religious are by law free from parish organization. 

Concerning the removal of pastors, we refer to the pro¬ 
cedure laid down by the Code, which is treated infra, 
under the judiciary powers of Ordinaries. Here we will 
only add the rule to be observed in removing religious 
pastors. 

Parish priests who belong to a religious community 
may, as far as their person is concerned, be removed at 
will and with equal right, either by the Ordinarius loci, 
after having notified the religious superior, or by the re¬ 
ligious superior, after having notified the Ordinarius loci. 
Neither is bound to state, much less to prove, the rea¬ 
sons for his proceeding to the other. Recourse in devolu- 
tivo to the Holy See is, however, open to both. (Can. 
454, § 5)- 

Assistants (or Curates) and Rectors 
(Can. 471-486) 

The Code distinguishes five classes of assistants. 

1. The so-called vicars, or actual pastors assigned to 
incorporated parishes, as mentioned above. Note that the 
bishop has no right to refuse canonical institution to a 
religious who has been found fit to rule a parish, although 
he may remove him, as per can. 454, § 5, quoted above. 

2. Another class of assistants are those styled oeconomi, 
or temporary administrators of vacant parishes. They 
are to be appointed quam primum, which means three 
days after the vacancy has become known to the bishop. 
If the administrator is a religious, the consent of the reli- 


182 POWERS CONCERNING PERSONS 


gious superior is required. Before the administrator is 
appointed, unless otherwise provided, the assistant priest 
shall rule the parish, and if there are several assistants, 
the first in rank, or if all are equal in rank, the senior as¬ 
sistant, shall assume the office of pastor ad interim. If 
there are no assistant priests, the nearest parish priest 
shall assume the office. In parishes entrusted to religious 
the superior of the house shall act in the same capacity. 
The Ordinary of the diocese shall, in due time, either at 
or outside the synod, determine which is to be considered 
the nearest parish. Whoever has assumed the ad interim 
administration of a parish, must inform the Ordinary 
of the diocese of the vacancy. 

The administrator shall hand over the key of the 
archives to the new pastor, or to the new administrator, 
in the presence of the rural dean, or of a priest appointed 
by the Ordinary, as also the inventory of the books and 
documents and other things pertaining to the parish, and 
render an account of the receipts and expenses during his 
administration. 

3. The third class is that of substitutes. A substitute 
is a priest who takes the place of an absent pastor, or of 
one who has been deprived of his parish and has appealed 
to Rome (can. 1923, § 2). He has charge of whatever 
pertains to the cure of souls, unless the Ordinary or the 
parish priest have made reservations. 

4. The fourth class is that of assistants given to dis -1 
abled pastors. They are freely assigned by the local 
Ordinary, who may also determine their faculties in 
the letter of appointment. 

5. The fifth class is that of assistants proper, or curates, 

(cooperatores ), who are given on account of the size of 
a parish or for other reasons. They are appointed by 
the Ordinary, who, however, is obliged first to hear the 


WITH REGARD TO RELIGIOUS 183 

pastor, although he is not bound to follow his opinion. 
Their faculties are variously determined. 

The removal of assistants of the last four classes de¬ 
pends entirely on the will of the bishop. The vicar- 
capitular may also remove them at random; but the vicar- 
general needs a special mandate for this purpose. Reli¬ 
gions assistants are removed like pastors, as per can. 454, 
§ 5, quoted above. 

Concerning rectors, i. e., priests assigned to churches 
which are neither parishes nor capitular nor religious 
churches, the Code gives full sway to the local Ordinary 
■ as to appointment, removal, and regulation of service. 
I It also rules that if in the Ordinary’s judgment a church 
with a rector is so far distant from the parish church 
that the parishioners cannot frequent the parish church 
except with great inconvenience, (1) the Ordinary can, 
under threat of heavy penalties, command the rector to 
hold service at hours more convenient for the people, to 
announce holydays and fast days, give catechetical instruc¬ 
tions, and explain the Gospel; (2) the pastor can take 
the Blessed Sacrament, if it is reserved there according 
to can. 1265, and administer it to the sick. 

POWERS OF ORDINARIES WITH REGARD TO 
RELIGIOUS 

(Can. 487-672) 

Here we will merely outline the rules laid down by 
the Code, referring the reader who desires more detailed 
1 information to the third volume of our Commentary. 

1. As to Establishing Religious Institutes 

The religious state, that is, the firmly established man¬ 
ner of living in a community, by which the faithful under- 




184 powers concerning religious 


take to observe, not only the ordinary precepts, but also 
the evangelical counsels, by means of the vows of obedi¬ 
ence, chastity, and poverty, must be held in high esteem 
by all (can. 487). If one of these three vows is not 
taken by the members of an institute, the latter does not 
canonically belong to the religious state, but is a pious 
association. 

Religious institutes are called papal or pontifical if 
they have obtained at least the decretum laudis. If this 
decree has not yet been granted by the S. Congregation 
of Religious, the institute is a diocesan one, even though it 
may be spread over several dioceses. 

Only the bishop can establish religious congregations; 
the vicar-general, even if especially commissioned, lacks 
this power. Bishops, however, must consult the 
Apostolic See before establishing new religious congre¬ 
gations. 

A bishop will do well, before founding a new religious 
institute, to study the new “Normac,” where it is stated, 
with regard to the preliminary steps, that, when he is 
about to establish a new congregation with simple vows, 
he shall consult the S. Congregation of Religious 
in accordance with can. 492, § 1. He shall explain in 
particular, who is the promoter of the new congregation, 
what is his character, and what are the reasons why he 
wishes to erect it; the name and title by which the con¬ 
gregation is to be known; the form, color, and material 
of the habit to be worn by the novices and the professed 
members; the number and nature of the works to be 
undertaken by the Congregation; how it expects to main¬ 
tain itself; whether or not there are similar congregations 
in the diocese, and by what means they subsist. 

When permission has been received from Rome, the , 
new congregation may be founded. A congregation thus 


NON-EXEMPT INSTITUTES 


185 

founded, however, will be under episcopal jurisdiction, 
and consequently, even though it may, in time, spread to 
other dioceses, as long as it lacks pontifical approval or 
praise (as required by can. 492, § 2), it will remain a 
diocesan institute, entirely subject to the jurisdiction of 
the (local) Ordinary, according to law. 

2. Concerning the Government of Non- 
Exempt Institutes 

a) Election 

In congregations of women, the election of a mother 
general shall be presided over by the Ordinary of the place 
where the election is held, or by his delegate; and in the 
case of a diocesan congregation, the Ordinary has full 
power to confirm or annul the result of the election, as 
his conscience dictates (can. 506, § 4). 

The Ordinary, or his delegate, is not allowed to enter 
the enclosure of monasteries of nuns (can. 506, § 2). 
This rule affects papal enclosures only; and consequently, 
where papal enclosure does not exist, the Ordinary is not 
bound by it. As to communities of men, even though 
non-exempt, the Code does not call for the presence of 
the local Ordinary at elections, but supposes that these 
elect like a chapter (can. 507, §1). 


b) Canonical Visitation 

The local Ordinary must visit every five years, either in 
[person or by delegate: (a) all the houses of lay congrega¬ 
tions , (b) all the houses of men or women of diocesan 
congregations, and (c) all the houses of clerical congre¬ 
gations approved by the Holy See. 




186 POWERS CONCERNING RELIGIOUS 


c) Temporal Affairs 

As to rendering and demanding accounts of temporal 
administration, the local Ordinary has the right of enquir¬ 
ing into the economic state of every religious house en¬ 
joying diocesan approval (can. 535, § 3, n. 1). 

Concerning papal congregations of women, the account 
to be given to the local Ordinaries concerns the dowries 
and administration of the funds and bequests referred 
to in can. 533, § 1, n. 3, 4 (can. 535, § 2, § 3, n. 2). 

Concerning papal congregations of men, the Ordinary 
has no right to demand an account, except for the funds 
and bequests referred to in can. 533, § 1, n. 3, and 
for parish money as per can. 533, § 1, n. 4 (see can. 
618). 

As to begging, the Code rules that mendicants who 
are regulars may beg in the diocese with the permission 
of their religious superior. If they wish to beg outside 
their own diocese, however, they need the written per¬ 
mission of the Ordinary in whose diocese they wish to 
beg. Ordinaries, especially of adjoining dioceses, should 
not refuse or withdraw such a license, except for weighty 
and urgent reasons, if the religious house cannot subsist 
on the alms gathered in the diocese in which it is situated. 

Non-mendicant orders and congregations need a papal 
indult and the written permission of the local Ordinary 
for begging in his diocese. 

Diocesan institutes need the written permission of the 
Ordinary of the diocese in which their house is located, 
as well as that of the Ordinary in whose diocese they wish 
to beg. This permission should be granted only in case 
of real need. Orientals need an authentic and recently 


NON-EXEMPT INSTITUTES 


187 


issued document of the S. C. for the Oriental Church 
for collecting alms. If religious seeking alms do not 
conduct themselves properly, the Ordinary of the dio¬ 
cese may proceed against them according to law (can. 
616). 


d) The Sacraments 

The right of solemnly conferring Baptism is among 
the strictly parochial rights (can. 462). The place for 
administering solemn Baptism is the parish church or 
public oratory (can. 773). Consequently, as a rule, the 
chaplains of congregations which have only a semi-public 
oratory are not allowed to confer Baptism there. Besides, 
since the pastor is strictly entitled to confer Baptism, 
the chaplain has no right to do so. This should be noted 
with regard to hospitals or academies. Only where 
can. 464, § 2 (exemption from parish organization) is 
verified, the pastor has to waive his claim. But even 
then the Ordinary must give permission to confer Baptism 
in a semi-public oratory. 

To this it may be objected that can. 776, § 1, n. 2 ad¬ 
mits solemn Baptism in private houses. The answer is 
that here, too, the Ordinary must give his consent, and can 
give it only in extraordinary cases, and for a just and 
reasonable cause. This does not imply a habitual per¬ 
mission, otherwise the parochial rights might become a 
mere mockery. Ingenious reasons are sometimes brought 
forward. If can. 464, § 2 is not applicable, and no ex¬ 
press permission has been granted, only private Baptism 
(in case of necessity) can be conferred in such houses 
or chapels. Nor may the baptismal water be carried away 
from the parish church, in order to confer solemn Bap- 


188 POWERS CONCERNING RELIGIOUS 


tism in a semi-public oratory; for it is not the quality of 
the water, but the place and minister that distinguish 
solemn from private Baptism. 

Religious should not be sponsors except in case of 
necessity (can. 766, n. 4). 

Confirmation may be administered in any chapel of 
religious, even though they be exempt (can. 792) ; but 
the right to do so is reserved to the diocesan Ordinary. 
Therefore, if a strange bishop would confirm in a chapel 
of religious, the consent of the local Ordinary would have 
to be obtained, or reasonably presumed, and if the chapel 
belongs to exempt religious, also the consent of the reli¬ 
gious superior (can. 337, §1). 

Concerning the Holy Eucharist, the following rules may 
be laid down: 

a) As to the admission of strange priests to say Mass 
in chapels of religious, the chaplain shall consult can. 804, 
concerning the f( celebref'* or personal acquaintance. 

b) Religious and others present are entitled to receive 
Holy Communion at the midnight Mass on Christmas 
day in the chapels of religious (can. 821, § 3). 

Concerning the communion of sick lay religious and 
other persons living in religious houses, see can. 514, § 3; 
the right is, per se, reserved to the pastor (cf. also can. 
848). In non-exempt clerical congregations it belongs 
to the superior {ibid., §1). If outsiders (for instance, 
pupils, patients, servants) receive their Easter Communion 
in the chapel of a religious institute, they should inform 
their pastor of the fact (can. 859, § 3). 

c) As to the reservation of the Blessed Sacrament, can. 
1265, § 1, n. 2 rules that with the permission of the 
local Ordinary it may be reserved only in the main public 
or semi-public oratory of religious houses; but nowhere 


NON-EXEMPT INSTITUTES 


189 


else, not even in the choir chapel of nuns (can. 1267). 
The key to the tabernacle should be carefully guarded, 
and the priest (chaplain) is responsible for its safekeep¬ 
ing (can. 1269, § 4). However, this does not mean that 
the “Sister Sacristan” may not be allowed to keep it, as 
is customary almost everywhere; but only that the ulti¬ 
mate responsibility rests on the priest. 

d) The exposition, private and public, of the Blessed 
Sacrament is regulated by can. 1274. 

Concerning the Sacrament of Penance, we refer to 
canons 518-528 and can. 876. A decision of the Pon¬ 
tifical Commission for the Authentic Interpretation says 
that can. 522 is to be understood in the sense that 
confession need not necessarily be made in a church 
or chapel, but may be made in any place lawfully 
appointed for hearing confessions of women 8 (see can. 
909 f). 

With regard to Extreme Unction, can. 514 must be 
compared with can. 462, n. 2, which latter reserves the 
right to the pastor, unless can. 464, § 2 takes effect. But 
can. 848, § 2 should also be consulted for cases of neces¬ 
sity. 

Concerning Holy Orders to be received by members of 
Congregations with simple vows, the following rules 
should be observed: 

a) Dimissorial letters must be issued by the higher 
superior to members of exempt congregations, like the 
Redemptorists, etc.; but to members with simple (temp¬ 
orary) vows, for tonsure and Minor Orders only. Mem¬ 
bers of congregations which are not exempt, need lit¬ 
ter ce dimissorice from their own bishop for major orders 
(can. 964). The bishop to whom the religious superior 

8 Nov. 24, 1920 (A. Ap. S., XII, 575)* 


190 POWERS CONCERNING RELIGIOUS 


must direct the dimissorial letters is the bishop in whose 
diocese the religious house of which the ordinand is a 
member (can. 965) is situated. 

b) The titulus ordinationis for religious with perpetual 
vows is that of mensae communis or congregations, or 
else one of the other canonical or acknowledged titles 
(can. 982). 

c) Irregularity ex defectu natedium is not taken away 
by the profession of simple vows (can. 984, n. 1). 

d) As to testimonials, all religious are subject to the 
common law governing the secular clergy (can. 993). 

e) The same is to be said with regard to the examin¬ 
ation to be taken before ordination (can. 996 f). 

f) The publication of the ordination of religious must 
not be made in the churches mentioned under can. 998. 

g) Unless a privilege has been obtained, the tempora 
ordinationum must be observed by all religious, contrary 
custom being reprobated (can. 1006). 

Concerning Matrimony, observe that the Ordinary 
should not grant permission to have it celebrated in 
churches or oratories of women religious without urgent 
necessity (can. 1109, § 2). 

As to sacred places, the law forbids the erection of 
a church of religious women as a parish church (can. 
609, § 2). 

The consecration as well as blessing of churches or 
oratories belonging to non-exempt Congregations pertains 
to the diocesan bishop (can. 1155, f.). Besides, can. 1162 
demands a special permission from the local Ordinary 
for the erection of a church or public oratory, even after 
the consent to establish a religious house has been given. 
Semi-public oratories can be erected only with the per¬ 
mission of the Ordinary, who must first inspect the place, 


NON-EXEMPT INSTITUTES 


191 

according to can. 1192. He may forbid certain functions 
to be held in semi-public oratories (can. 1193). He 
should also watch that no conflict ensues with the paro¬ 
chial functions (can. 609, § 3). 

Concerning the burial of religious, cans. 1221 and 1230 
must be observed. The latter grants the right to bury 
non-exempt religious to the pastor in whose parish the 
religious house is situated, unless exemption has been 
granted to the religious by the local Ordinary (can. 464, 
§ 2). If exemption has been properly accorded, the 
chaplain of the respective house is entitled to perform 
the funeral service. Can. 1222 provides that guests, 
students, or sick persons, who have lived in a religious 
house, or who die in a hospital, are to be buried like 
secular persons, and hence the chaplain of the religious 
house, even though the house is exempted by the local 
Ordinary, has no right to bury such persons (but see 
can. 1216-1218). 

As to sacred processions, can. 1291 provides that 
male religious must be present at the Corpus Christi pro¬ 
cession. From parish and other churches, including pub¬ 
lic oratories, processions may be held during the octave 
of Corpus Christi. Of semi-public oratories nothing is 
said, and consequently, no processions can be held from 
them without the special permission of the Ordinary, and 
can. 1293 must be applied. Can. 1291, § 1 does not forbid 
Sisters to march in the Corpus Christi procession. 

Concerning preaching, can. 1334 says that even exempt 
religious may be called upon to help in giving catecheti¬ 
cal instructions to the people. The faculties for preach¬ 
ing are granted to non-exempt religious by the Ordinary 
in whose diocese the preaching is done (can. 1338). 
This faculty is required every time they wish to preach in 
a strange diocese (can. 1341, §1). Religious who are 


192 POWERS CONCERNING RELIGIOUS 


pastors must obey the orders of the local Ordinary also 
with regard to missions (can. 1349). 

With regard to the censorship of hooks, all non-exempt 
religious must refrain from reading books forbidden by 
the local Ordinary (can. 1395) ; and also ask of him the 
permission necessary to read forbidden books (can. 1402, 
§ 1), and the imprimatur for any kind of books (can. 

J3 86 > § 1 ). 

e) Penalties 

The clerical members (confessors) do not enjoy the 
privileges of regulars to absolve from cases reserved by 
law to the bishops. To absolve from these cases they 
need special faculties. In practice they had best follow 
the formulary issued for the respective diocese. To the 
reserved cases belong, besides those reserved with regard 
to all the faithful, apostasy from religion, i. e., from a 
non-exempt institute (can. 2385), and marriage con¬ 
tracted by religious (can. 2388). 

The Ordinary may proceed with ecclesiastical penalties 
against religious and their superiors in the following 
cases: 

(a) if community life is seriously violated, can. 2389; 

(b) if the law concerning dimissorials is rashly 
violated, can. 2410; 

(c) if the law concerning testimonials is violated, can. 
2411; 

(d) if the law concerning alienation, investment of 
dowries, and examination of postulants and novices is 
transgressed, can. 2347, 2412; 

(e) if the rules concerning visitation are set aside, can. 

2413; 

(f) if liberty of conscience concerning confession 
is violated by superiors, can. 2414. 


NON-EXEMPT INSTITUTES 


193 


/) Confessor and Chaplain 

The confessor is appointed by the local Ordinary for 
a term of three years, but may be reappointed for another, 
and even a third term, according to can. 526. After 
his term has elapsed, he cannot be reappointed unless a 
year has expired since his last term, nor can an ordinary 
confessor be appointed extraordinary confessor except 
after a year has passed (can. 524, § 2). 

The extraordinary confessor may hold his office as 
long as it pleases the local Ordinary; he may also be 
appointed ordinary confessor immediately after or during 
his office as extraordinary confessor (can. 524, § 2). 

The confessor of religious communities cannot dis¬ 
pense from the law of fasting or abstinence or the ob¬ 
servance of feasts, can. 1245. However, if the Bishop 
wishes to grant him that power, he is at liberty to do so, 
and it is generally done. Besides, the confessor may, 
according to the rules of moral theology, declare, in in¬ 
dividual cases, that the law of fasting or abstinence does 
not bind. Lastly, religious communities may make use 
of the diocesan mitigations or regulations, unless their 
constitutions prevent them (can. 1253). 

Confessors of religious, ordinary as well as extraordin¬ 
ary, are strictly forbidden to meddle in the internal or ex¬ 
ternal government of the community (can. 524, § 3), for 
this would be tantamount to a usurpation of jurisdiction, 
which is denied, except in the confessional. Besides they 
should also heed can. 2352, which threatens excommuni¬ 
cation for those who persuade or compel any person to 
enter the religious state. 

The confessor may enter the enclosure in case of 
necessity, i. e., to hear the confessions of sick Sisters; but 


194 POWERS CONCERNING RELIGIOUS 


he should be always accompanied by two Sisters, and be 
dressed in surplice and stole in the sickroom. 

A chaplain is appointed by the local Ordinary for 
all non-exempt religious communities; in exempt com¬ 
munities, the religious superior designates or presents 
a priest to the local Ordinary, who must grant him the 
necessary faculties for saying Mass and preaching (can. 
529). Other faculties cannot be claimed by him, unless 
the Bishop should choose to delegate him as spiritual 
director with extended powers. Elowever, not even the 
Ordinary is allowed to change anything in the Constitu¬ 
tions approved by the Holy See (can. 618, § 2, n. 1). 
Diocesan institutes have their constitutions approved by 
the local Ordinary, who should put them into execution 
and test them by observance. The chaplain or spiritual 
director must leave the internal and external government 
of the community to the religious. His office is to say 
Mass, administer Holy Communion, assist the sick (ex¬ 
cept in what is reserved to the confessor), and preach the 
Word of God, or give instructions. As to the Viaticum, 
Extreme Unction, and burial, see can. 514, 1221, 1280, 
§ 5. Unless exemption is granted according to can. 464, 
§ 2, the chaplain is not entitled to administer either the 
Viaticum or Extreme Unction, or to perform the funeral 
rites. The chaplain, too, should heed can. 2352 and not 
preach or instruct academy girls in a fashion that would 
almost amount to compelling them to enter the religious 
state. 

Here a remark concerning spiritual directors may not 
be superfluous. Formerly the S. Congregation refused 
to acknowledge any spiritual director over religious con¬ 
gregations endowed with the decree of commendation, 
or spread over more than one diocese. Notwithstanding 
this prohibition it was found necessary that the bishop 


NON-EXEMPT INSTITUTES 


i95 


should appoint such a director for the religious congre¬ 
gations of his diocese. This was admitted, provided 
the bishop acted according to the “Conditae,” of 1900, 
which was the norm for such communities. Now he 
must follow the Code, beyond which he is not allowed to 
go. Since the bishop cannot command in virtue of the 
vow of obedience, neither can the director. We also 
draw attention to can. 500, § 3. 

g) The Exploratio Voluntatis 

Can. 552, § 1 calls for a threefold examination ( explo¬ 
ratio voluntatis ), vis., one before a girl is admitted to the 
novitiate, another before the temporary, and a third be¬ 
fore the perpetual profession. Now there are sisterhoods 
who put their candidates through two periods of three 
years each of temporal vows before they take perpetual 
vows. The text of the Code is rather explicit regarding 
the three examinations: before the novitiate, before tem¬ 
porary profession, and before perpetual profession; but 
whether the intermediate temporary profession also re¬ 
quires a canonical examination is not stated. We believe 
that intermediate examination in this case may safely be 
omitted, for the object of the law is accomplished by the 
threefold examination, and we do not do any violence 
to the text, which requires only three examinations; and, 
finally, the intermediate profession must be looked upon 
as an annual or a renewed profession, for which no ex¬ 
amination is necessary. But, on the other hand, it is 
certain that the Ordinary is by no means entitled to make 
that examination before the temporary profession, to be 
pronounced after the first term of three years has elapsed 
and then omit the examination before the perpetual 
profession. For the latter examination is strictly re- 


196 POWERS CONCERNING RELIGIOUS 


quired; § 2 of the same can. 552 cannot be understood 
in any other way. For the words: “then the aspirant 
may be admitted to the novitiate, or, if already a novice, 
to profession,” must be interpreted according to the ex¬ 
press text of § 1. 


h) Enclosure 

The Ordinary must diligently watch over the enclosure 
of nuns, even those subject to regulars. In cases of 
imminent danger the Ordinary should recognize or verify 
or at least be told the reason of this danger. The en¬ 
closure called episcopal , which is imposed on religious 
with simple vows only, may, in particular circumstances 
and for grave reasons, be safeguarded by censures. The 
Ordinary shall also see to it that the Sisters do not leave 
the house singly, without a companion (can. 601, 603, 
604). 


i) The Dismissal of Religious 

The Code distinguishes between the dismissal of re¬ 
ligious with temporary vows and that of religious with 
perpetual vows. 

1. If a nun with temporary vows is to be dismissed, 
the Ordinary may dismiss her after the superioress with 
her counsellors has given a written attestation of the 
motives alleged for the dismissal. 

In diocesan congregations the right of dismissing a 
Sister with temporary vows belongs to the Ordinary in 
whose diocese the house is located. However, he should 
not act without the knowledge of the superioress or 
against her just opposition. Besides, in order to proceed 
to dismissal licitly, it is required that the reasons or mo- 


SUPPRESSION AND EXEMPTION 


197 


tives be grave, and that they be made known to the re¬ 
ligious. If the religious appeals to Rome, the recourse 
has suspensive effect, which means that the religious can¬ 
not validly be dismissed, until the S. Congregation of 
Religious has decided the case against him or her. 

2. When a religious with perpetual vows is to be dis¬ 
missed, he or she must have been convicted of at least 
three offences, twice admonished, and proved incorrigi¬ 
ble. Then, in diocesan institutes, the whole matter must 
be referred to the Ordinary in whose diocese the religious 
house of the professed is located. He must weigh the 
reasons or motives for dismissal, and then issue the de¬ 
cree; but also heed an eventual appeal. If a nun is to 
be dismissed, the local Ordinary shall transmit all the acts 
and documents to Rome to await the judgment of the 
Holy See. In papal institutes the superior of the re¬ 
ligious must refer the whole matter to the S. C. of Re¬ 
ligious. 

In case of grave external scandal, or very serious 
injury threatening the community, the religious may be 
dismissed immediately by the higher superior with the 
consent of the council, or even by the local superior with 
the consent of the council and of the local Ordinary, if 
there be danger in delay and there is no time for recourse 
to the higher superior. 

3. Suppression and Exemption 

Any religious congregation, even though diocesan 
only, can be suppressed by the Holy See, and by it alone. 
To the same authority is reserved the suppression of a 
province. The disposal of the property of an extinct 
province belongs to the General Chapter or Superior- 
General with his council. A religious house of a non- 


198 powers concerning religious 


exempt religious congregation approved by the Holy See 
can be suppressed by the Superior-General with the con¬ 
sent of the local Ordinary. A religious house of a 
diocesan congregation can be suppressed by the local Or¬ 
dinary (can. 408). What if a house of so-called nuns 9 
is to be suppressed? Can. 493 gives the answer: an 
institute, even when only diocesan (as most of our 
Benedictine foundations are), once legitimately estab¬ 
lished, though it possess only one house, cannot be 
suppressed except by the Holy See. Recourse to the 
S. Congregation of Religious is, of course, always open 
to both the bishop and the religious. 

Exemption from the jurisdiction of the local Ordinary 
is granted only to regulars (can. 615) ; all other religious 
institutes, papal and diocesan, are subject to the local 
Ordinary, unless the Apostolic See has granted the 
privilege of exemption to an institute which does not 
belong to the class of regulars (can. 500, § 1). The 
local Ordinary himself may, for good reasons, grant ex¬ 
emption from the parish organization to communities 
which would otherwise form part and parcel of a parish, 
and therefore be subject to the pastor (can. 464, § 2). 

4. RELIGIOUS ORDINARIES 

As stated above, the higher superiors, (superiores 
maiores) of exempt clerical institutes go by the name of 
Ordinaries (can. 198). Their power, granted by the 
Sovereign Pontiff, is called quasi-episcopal, because it is 
similar to that of bishops, and, except in the matter of 

9 Those, namely, who, by virtue of their original rule or con¬ 
stitution, should pronounce solemn, but in fact have only simple 
vows. 


RELIGIOUS ORDINARIES 


199 


orders, equal to it concerning their own subjects. Hence 
these superiors and their subjects are exempt from the 
jurisdiction of the local Ordinary, except in the cases 
mentioned in the Code (can. 615). Leaving aside their 
dominative or domestic power, we shall point out briefly 
the main features of their external jurisdiction and ad¬ 
ministration, premising a few words about qualities and 
obligations. 


1. Qualities and Obligations 

a) The Code (can. 504) demands that only those who 
have been members of the same institute for at least ten 
years from the date of their first or temporary profession 
may be elected higher superiors. They must be of legit¬ 
imate birth and must have completed at least the thirtieth 
year of age. A superior general must have completed his 
fortieth year. These conditions affect the validity of the 
election. If one of them is missing, postulation takes 
place. Election or postulation is exclusively effected 
by the religious themselves. 

b) The office of a religious superior, as a rule, is tem¬ 
porary. Only if the Constitutions or rules admit perpet¬ 
ual superiors, may they hold their office for life (can. 
505 ). Here there is a gap in the Code, for it has not 
provided for cases which imperatively demand that a 
superior, whether disabled or proved incapable of ad¬ 
ministration and goverment, be removed or made to re¬ 
sign. Hence the Constitutions should make the proper 
provisions. 

c) The superiors are obliged to see to it that the de¬ 
crees issued by the Holy See for religious be made known 
to their subjects and put into effect (can. 509). 


200 POWERS CONCERNING RELIGIOUS 


d) Religious superiors shall reside in their respective 
houses, which they are not allowed to leave except as far 
as the Constitutions permit (can. 508). 

e) The abbot primate, the superior of every monastic 
congregation, and the superior general of every pontifical 
institute, must send a written report on the status of his 
community to the Holy See every five years, or if the 
Constitution prescribes it, oftener. This report must be 
signed by the respective superior and his counsellors; and 
when the congregation is one of women, also by the Or¬ 
dinary in whose diocese the general superioress with her 
counsel resides. 

f) Religious superiors are strictly forbidden to handle 
or interfere with cases belonging to the Holy Office (can. 
501, § 2). These concern: 

(a) Whatever belongs to heresy and schism, as well 
as the persons (bishops, inquisitors) who proceed against 
these crimes, if they are impeded or disturbed in prose¬ 
cuting the guilty; 

(b) Whatever savors of divination, witchcraft, sorcery, 
superstition, astrology, etc.; 

(c) Whatever touches the sacredness of the confes¬ 
sional ; 

(d) Persons, lay or clerical, who, though not priests, 
attempt to say Mass or hear confessions. 

(e) The Code adds another, viz., religious who become 
members of a Masonic sect or similar society. They 
must be denounced to the Holy Office. These and 
similar crimes, then, religious superiors are not to prose¬ 
cute, either criminally, or judiciarily, by summoning 
witnesses or inflicting penalties, or in any way that would 
savor of inquisitorial procedure, but must refer to the 
Holy Office if proof is in their hands. They are not 


RELIGIOUS ORDINARIES 


201 


obliged to act on mere suspicion or rumor, because pru¬ 
dence and charity require an investigation; and they 
may not administer fraternal correction or admonition. 
The culprits may be reported to the Ordinary or directly 
to the Holy Office. 

Can. 511 provides that the higher superiors of religious 
orders as well as congregations, whom the constitutions 
entrust with the office of visitors, should at stated times, 
as prescribed in the constitutions, visit all the houses 
subject to them. If they are lawfully prevented from 
performing this duty personally, they may send others 
in their stead. The questions which the visitor should 
ask, according to approved authors, are chiefly the fol¬ 
lowing : 

(a) About the regular discipline , observance of vows, 
rules and constitutions, life in common and spiritual ex¬ 
ercises in the choir and elsewhere, fast and abstinence, 
fraternal charity; 

(b) Concerning the duties to be performed by the 
superiors and officials, teachers and employers towards 
their subjects and inferiors, about conferences and chap¬ 
ters of faults, schools and instructions, reading of the 
decrees prescribed, observance of laws and customary 
rubrics; 

(c) Regarding temporal affairs , especially Mass obli¬ 
gations, founded and manual, property and debts, method 
of bookkeeping, alienation, etc. 

(d) The honorary title of higher offices, such as titular 
abbot, ex-provincial, etc., is allowed only to those who 
have once held such an office in their institute (can. 515). 

(e) They are obliged to make the profession of faith 
before the chapter or the superior who appointed them 
(can. 1406 § 1, n. 9). 


202 POWERS CONCERNING RELIGIOUS 


2. Rights or Powers 

The powers of the superiors of regulars or exempt 
religious are determined partly by the Code and partly 
by the respective Constitutions. Here we are concerned 
only with the rights pointed out by law. 

i) Concerning the Sacraments: (i) In regard to bap¬ 
tism they are not allowed to interfere with parochial 
rights. On the other hand they are obliged to send the 
names of their subjects who have been ordained sub¬ 
deacons and of those who have made solemn vows, to the 
pastor who has baptized them (can. ioii, can. 576, § 2). 

(2) With regard to Confirmation nothing need be 
said, since prelates regular, unless they are abbots nullius 
or Apostolic Vicars or Prefects, or have obtained a local 
Apostolic privilege, as, for instance, the abbots of Fulda 
once possessed, cannot confer this Sacrament. 

(3) Respecting the Holy Eucharist the Code (can. 
514) states: “In every clerical institute the superiors 
have the right and duty to administer, either themselves 
or through another, the Eucharistic Viaticum and Ex¬ 
treme Unction to sick professed members and novices 
and to others who dwell day and night in the religious 
house, either by reason of service, or education, or hos¬ 
pitality ( hospitii ) or sickness.” 

The higher superior may grant permission to say Mass 
outside a church or oratory, upon a consecrated altar 
stone, provided the place is decent (no bedroom) and 
the permission is granted for a just and reasonable cause, 
in extraordinary cases only, and not habitually (can. 822, 
§ 4 ). 

The higher superiors are responsible for the Masses 


RELIGIOUS ORDINARIES 


203 

to be said on the religious and pious foundations en¬ 
trusted to them, and for proper bookkeeping in this re¬ 
spect (can. 842-844). 

(4) As to the Sacrament of Penance, the law rules 
that in exempt religious institutes of clerics delegated 
jurisdiction for hearing the confessions of those 
mentioned in can. 514 (see above) is to be given by 
their own superior, who may also grant such jurisdiction 
to secular priests or priests of another religious institute 
(can. 875). But religious superiors, even though con¬ 
vents of nuns are subject to them, cannot impart juris¬ 
diction for hearing confessions of female religious, either 
nuns or Sisters, or novices (can. 876). The religious 
superior may, in case he has nuns subject to him, pre¬ 
sent a confessor to the Ordinary, who will then give 
jurisdiction to the one thus presented (can. 525). 

Religious superiors should not, except for grave 
reasons, habitually hear their own subjects’ confessions 
(can. 518). Neither are they allowed to impede their 
subjects from making use of can. 519, which permits 
them to go to confession to any priest approved by the 
local Ordinary. 

(5) As to Holy Orders : Superiors of exempt religious 
institutes must give dimissorial letters to their subjects, 
in order that the episcopus proprius may licitly ordain 
them. The episcopus proprius is the one in whose 
diocese is situated the religious house of which the or- 
dinandus is a member. 

a) A governing abbot, though not an abbot nullius , 
may confer tonsure and minor orders on such as are 
subject to him by virtue of at least simple profession, 
provided the abbot himself is a priest and has lawfully 
received the abbatial blessing. For sacred orders, abbots 


204 POWERS CONCERNING RELIGIOUS 


like other exempt prelates, must give dimissorials, 
which are at the same time testimonials that the can¬ 
didate has made his religious profession, is a member of 
the religious house subject to the respective superior, 
has completed the required studies and complied with 
the other conditions demanded by law. The titulus or- 
dinationis of exempt religious is that of religious 
profession (can. 964, 965, 982, 995). As to tempora 
and interstitia, religious must, by common law, obey the 
Code. However, since the privileges granted to regulars 
are not abolished or modified,—as far as we know,— 
these favors may still be applied to regulars. Superiors 
may prohibit their subjects from receiving higher orders 
(can. 970). 

b) As to Sacramentals, it may be stated that consecra¬ 
tions ( ubi unctio intercedit) cannot be performed by reg¬ 
ular prelates, unless they have obtained a special priv¬ 
ilege to that effect, nor can the bishop delegate them 
for such functions. But higher superiors may, either 
themselves or through a delegate, bless (can. 1155, 
1156) and lay the cornerstones for their own churches 
(can. 1163), bless the sacra supellex for the use of their 
own churches and the churches of nuns subject to them 
(can. 1304), and reconcile desecrated churches, either 
consecrated or blessed, which belong to their institute 
(can. 1176, 2), i.e., those incorporated pleno iure. 

c) Concerning preaching, the prelates may grant the 
faculty, if the preaching is to be done to their own sub¬ 
jects only; but to preach to nuns, though subject to reg¬ 
ulars, the local Ordinary must, besides, impart the fac¬ 
ulty (can. 1338). 

d) Religious superiors may grant permission to their 
subjects to publish books, but the imprimatur proper is 


RELIGIOUS ORDINARIES 205 

to be given by the Ordinary, according to canon 1385, 
§ 3 - 

Exempt prelates may forbid their subjects to read 
certain books (can. 1395). 

e) As to offices or benefices’. Religious superiors may 
present one of their own to the local Ordinary for can¬ 
onical institution, if the parish is pleno iure incorporated 
(can. 471, §2). He is removed as stated above. 

Confessors of nuns subject to regulars are presented 
to the Ordinary, who imparts the jurisdiction; confessors 
of Sisters are appointed by the local Ordinary, who may 
choose from the secular or religious clergy (can. 524). 

Chaplains for exempt houses are designated by the 
religious superiors (can. 529). 

Higher superiors of exempt clerical orders may act 
as notaries in all ecclesiastical matters pertaining to their 
own institute (can. 503). 

f) With regard to temporal affairs or the right to 
hold and administer property , they are independent with 
regard to religious property, but must administer it ac¬ 
cording to the Code (can. 531-537). 

g) Superiors of exempt clerical institutes may dispense 
from vows not reserved and in favor of all those men¬ 
tioned in can. 514. They may also, like pastors, dispense 
their own subjects and those mentioned in can. 514, 
from the law of fasting and abstinence. 

h) Religious superiors are entitled to perform the fu¬ 
neral rites over their own religious and novices (can. 
1221). 

i) Concerning the penal laws, they are bound by the 
Code and their own Constitutions, but enjoy the same 
power over their subjects as the local Ordinary does 
over his. 


206 


POWERS OF ORDINARIES 


5. Powers of Ordinaries Concerning Confraternities 

To erect or approve societies which are to be recog¬ 
nized by the Church, and to enjoy the privileges and 
spiritual favors granted by her, belongs, aside from the 
Roman Pontiff, to the Ordinary of the diocese, with 
the exception of those societies whose institution is by 
Apostolic concession reserved to others. 

Even in case a concession has been granted, the writ¬ 
ten consent of the Ordinary is required for the valid 
foundation of a society, unless the contrary is explicitly 
stated in the concession. The permission of the Ordi¬ 
nary to erect a religious house includes permission to 
establish in this house or the adjacent church any so¬ 
ciety that may be customary with the religious institute 
in question, even though it may not form part and parcel 
of the institute itself. 

In virtue of their usual powers, neither a vicar- 
general nor a vicar-capitular enjoys the right of estab¬ 
lishing any society or of granting the required canonical 
consent to one already established. 

With the exception of a nominal fee to cover the 
necessary expenses, letters of foundation are to be 
granted gratis. 

Every society shall have its own statutes, which are 
to be examined and approved by the Apostolic See 
or by the Ordinary of the diocese. 

Statutes which have not been approved by the 
Apostolic See always remain subject to modification and 
correction by the diocesan Ordinary. 

All societies, even those erected by the Apostolic See, 
unless they enjoy a special privilege to the contrary, are 


CONFRATERNITIES 


207 


subject to the authority of the Ordinary, who has the 
right and duty to watch over them according to the pre¬ 
scriptions of the sacred canons. 

It is not permissible, however, for diocesan Ordinaries 
to meddle in the internal discipline or spiritual direction 
of societies which exempt religious institutes have 
erected in their churches by virtue of an Apostolic priv¬ 
ilege. 

A society legitimately established may possess and ad¬ 
minister temporalities under the direction of the local 
Ordinary, unless the contrary is expressly stated in the 
letters of approbation. An account of the property 
must be rendered at least once a year to the Ordinary, 
conformably to the prescriptions of can. 1525, but the 
society is not in this regard subject to the parish priest 
in whose territory it exists, unless the Ordinary legis¬ 
lates otherwise. 

Such a society may accept donations according to the 
tenor of its statutes, and use them for any good purpose, 
with due regard, of course, to the will of the donors. 

No society is allowed to seek alms, unless its statutes 
permit or necessity demands it, and then only with the con¬ 
sent of the Ordinary and in the way prescribed by him. 

To solicit alms elsewhere than within its own terri¬ 
tory, a society needs the written permission of the Ordi¬ 
nary. 

The society must render an account to the local Ordi¬ 
nary of the alms and other offerings received. 

Unless the contrary be specifically conceded or pro¬ 
vided for by law, several confraternities or pious organ¬ 
izations bearing the same name, or founded under the 
same auspices, may not be erected or approved in the 
•same place. In large cities, however, this may be done 


208 concerning confraternities 


if a sufficient distance intervenes between the respective 
confraternities according to the good judgment of the 
Ordinary. 

It is the duty of the diocesan Ordinaries to see to it 
that the confraternities of the Blessed Sacrament and of 
Christian Doctrine are established in every parish. Once 
legitimately erected, these confraternities are ipso iure 
aggregated to the archconfraternities of the same name 
established in the city of Rome. 

Confraternities or pious organizations may be erected 
only in public or semi-public churches or oratories. 
They cannot be established in cathedral churches without 
the consent of the chapter. In churches or oratories of 
women religious, the diocesan Ordinary is allowed to 
erect associations for women only, or pious organizations, 
the scope of which is to gain spiritual favors by means 
of the apostolate of prayer. 

On the occasion of the reception of new members into 
a society, no fee may be exacted beyond that determined 
in the lawfully approved statutes, or that which the Or¬ 
dinary of the diocese, by reason of special circumstances, 
has expressly permitted in favor of the society. 

No confraternity is allowed to abolish or modify its 
garb or insignia without the permission of the diocesan 
Ordinary. 

It pertains to the diocesan Ordinary to preside, either 
personally or by proxy, at the meetings of confraterni¬ 
ties, even those which are held in churches and oratories 
of regulars, to confirm the election of worthy and capa¬ 
ble officials, to reject or remove unworthy ones, and to 
amend and approve statutes and norms that have not the 
formal sanction of the Holy See. However, the Ordi¬ 
nary has not the right of suffrage at these meetings. 


CONFRATERNITIES 


209 


Confraternities shall in due time notify the Ordinary 
or his delegate of any extraordinary meeting; if they 
fail to do so, the Ordinary may impede such meetings 
or annul their decrees. 

Even though nothing be expressly stated in the stat¬ 
utes, the Ordinary of the diocese may dismiss any mem¬ 
ber of any society. The religious superior enjoys the 
same right in respect to societies erected by his subjects 
in virtue of an Apostolic indult. 

Unless an Apostolic privilege provides otherwise, the 
appointment of the moderator and chaplain belongs to the 
Ordinary in societies established or approved either by 
himself or by the Apostolic See and in societies erected 
by religious outside their own churches by virtue of an 
Apostolic privilege; but in societies established by reli¬ 
gious in their own churches, the consent of the Ordinary 
is required only in case the moderator and the chaplain 
are appointed by the religious Superior from among the 
secular clergy. 

Unless the local Ordinary determines otherwise, con¬ 
fraternities are obliged to take part in a body in the 
usual processions, and others ordered by the Ordinary. 
They march under their own cross and wear their proper 
insignia. 

With the consent of the diocesan Ordinary, any con¬ 
fraternity or pious organization may transfer its quarters 
from one place to another, unless such a transfer is 
prohibited either by law or by statutes that have been 
approved by the Holy See. 

The transfer of a confraternity or pious organization 
that belongs to a definite religious institute, requires the 
consent of the respective superior. 

For valid affiliation it is required: (1) that the associ- 


210 


CONCERNING CONFRATERNITIES 


ation be canonically erected and not affiliated to any other 
archconfraternity or primary pious organization; (2) 
that it is done with the written approval of the diocesan 
Ordinary and with testimonial letters from him; (3) 
that the indulgences, privileges, and other spiritual fa¬ 
vors granted to members be enumerated in writing, the 
list to be inspected by the Ordinary of the diocese in 
which the archconfraternity exists, and forwarded to 
the affiliated society; (4) that the affiliation be made 
according to the form prescribed in the statutes and for¬ 
ever; (5) that, excepting unavoidable expenses, the 
letters of affiliation be furnished gratis and without rec¬ 
ompense, even if such be freely offered. 

For grave reasons, and with due regard to the right 
of recourse to the Holy See, the local Ordinary may sup¬ 
press, not only a society established by himself or his 
predecessors, but also a society erected by religious in 
virtue of an Apostolic indult, requiring the consent of the 
Ordinary. 

Societies erected by the Holy See itself can be sup¬ 
pressed only by the same. 

With the exception of such Orders as have been ac¬ 
corded the privilege, no religious institute is allowed to 
establish a Third Order. Hence only orders of regulars, 
but not congregations, even though they be exempt, may 
establish a third order of their own, and even these need 
a special privilege to that effect. 

Although religious superiors may enroll particular per¬ 
sons as Tertiaries, they may not validly establish a sodal¬ 
ity of Tertiaries, even though their order has an Apos¬ 
tolic privilege to that effect, without the approval of the 
diocesan ordinary (can. 686, § 3). Neither are they per¬ 
mitted to allow the sodalities which they—the religious 
superiors—have erected, to wear a special garb at public 


FACULTIES 


211 


sacred functions, without the express permission of the 
Ordinary. This special garb must not be confounded 
with the insignia of the Tertiaries, which consist of a 
small scapular and a girdle of hemp or wool, which they 
may wear at processions without special permission. 

Here we will add the faculties which the .S'. C. of Re¬ 
ligious grants to local Ordinaries. Religious superiors of 
exempt clerical institutes are not included in this grant; 
but we believe that, if they have religious institutes under 
their jurisdiction—which, though not admitted by law 
(can. 500, § 3), may be obtained or be given for special 
reasons—, they may also receive these faculties. Numbers 
8 and 9 have little practical value for Ordinaries who 
have no nuns under their care. 

1. To dispense from illegitimacy, if this condition is in¬ 
serted as invalidating religious profession in the respective 
Constitutions; for can. 542 contains nothing to this effect. 
Sacrilegious illegitimacy, however, is not thereby dis- 

! pensed from, nor can an illegitimacy otherwise dispensed 
from in virtue of this faculty, be admitted to higher 
offices; (see can. 504). 

2. To grant permission for celebrating three Masses on 
Christmas night, as admitted by the rubrics, in the 
churches of religious not comprised by can. 821, § 3, pro¬ 
vided the same priest says all three Masses (see our 
Commentary, Vol. IV, p. 165 ff.). 

3. To grant dispensation for those who, according to 
the Constitutions of the respective institutes, could not be 
received by reason of advanced age. The Ordinary must, 
however, previously obtain the consent of the superior, 
either general or provincial, and his counsellors. Besides, 
the postulants should not be older than forty years and 
possess the other necessary qualities (see can. 542). 

4. To dispense from lack of the age required for the 



212 


POWER OF BISHOPS 


priesthood, but only to the extent of a certain number of 
months. This number is not explicity stated; but since 
the term “month” is used, it is implied that it should be 
less than a year. This faculty may also be applied in 
favor of exempt religious, provided they have obtained 
dimissorials from their superiors. In all cases the studies 
required by can. 976, § 2 must have been fully completed, 
unless, of course, the candidate has received a general 
privilege to the contrary, as the Benedictines did. 

5. To dispense Nuns and Sisters from the defect of 
dowry, either entirely or in part, provided the institute 
does not suffer thereby financially and the candidates are 
commendable for reasons of great usefulness. Concern¬ 
ing the dowry, see can. 547, which permits Ordinaries to 
dispense from it in diocesan institutes. The faculty, 
therefore, concerns only exempt and papal organizations 
whose Constitutions demand a dowry. 

6. To confirm the ordinary confessor for a fourth and 
even a fifth term, provided the majority of the religious 
vote by secret ballot in favor of his confirmation in office; 
to this ballot also those who would otherwise be excluded 
from voting, must be submitted, and provision must be 
made for those who object to the confirmation if they 
demand it (see can. 526). 

7. To permit the celebration of Mass on Holy Thurs¬ 
day, which permission also allows persons living habit¬ 
ually in the community (see can. 514) to receive their 
Easter Communion (see can. 820 and 859) there. 

8. To allow cloistered nuns to go to a church adjoining 
the convent outside the enclosure, for the purpose of 
cleaning and adorning it. There must, however, be no 
stranger in the church, not even the confessor nor any 
domestic servant; the door must be shut and the keys 


ECCLESIASTICAL THINGS 


213 


handed to the superioress; the gate leading to the interior 
entrance must be locked with two keys, one of which must 
be kept by the superioress and the other by a nun ap¬ 
pointed by the Ordinary; this interior gate may only be 
opened on the above-named occasions and after taking 
due precautions, one of which is that two nuns must go 
together. 

9. To allow nuns to leave the enclosure in case one of 
them should have to undergo a surgical operation, even 
if there were no immediate danger of death or of im¬ 
minent serious consequences, but only for the time ab¬ 
solutely necessary and with due precautions. The latter 
two faculties are hardly required in our country, except 
in places or dioceses where there are Visitation nuns with 
papal enclosure. 


SECTION V 

POWERS CONCERNING THINGS 

The third book of the Code treats de rebus. The 
provisions which it embodies may be called administrative 
law , because the “things” comprised therein together form 
the object of ecclesiastical administration, either in the 
merely spiritual or in the mixed domain. Besides, since 
a potiori ht denominatio, and the Sacraments constitute the 
most important part of this Book, the sacred ministry of 
the Church here becomes most conspicuous. But even 
mixed things, such as benefices and temporalities, must be 
assigned to the administrative section. 

The Code understands by the term res ecclesiasticae the 
means by which the Church attains her end. These are 
either spiritual, or temporal, or mixed. The Code, there¬ 
fore, treats of the following subjects: 


214 


POWERS CONCERNING THINGS 


Sacraments and Sacramentals. 
Sacred Places and Times. 

Divine Worship. 

The Magisterium Ecclesiasticum. 
Ecclesiastical Benefices. 

Church Property. 


SIMONY 

(Can. 727-730) 

Two kinds of simony are distinguished in the Code, viz., 
inris divini, which is a deliberate eagerness to buy or sell 
for a temporal price anything either intrinsically spiritual 
or temporal with a spiritual thing attached to it in such a 
way that the temporal could not exist at all without the 
spiritual object, or the spiritual object itself, though only 
in a partial way, is intended in the bargain. Simony inris 
ccclesiastici is committed when temporal objects annexed 
to spiritual are given for other objects annexed to spiritual 
objects, or temporal objects for temporal objects, when 
forbidden by the Church on account of the danger of ir¬ 
reverence. 

The penalties are thus stated in the Code: 

1 °. Prior to any judicial sentence the thing simonia- 
cally given and received must be restored, if restitution is 
possible and feasible without irreverence to the spiritual 
object, and the benefice, office or dignity must be sur¬ 
rendered ; 

2 0 . The beneficiary of a simoniacal transaction cannot 
receive the revenues of his benefice, but if he has ac¬ 
cepted them in good faith, it is left to the discretion of the 
judge or Ordinary to condone the income thus received, 
either totally, or in part. 


ADMINISTRATION OF SACRAMENTS 215 


I. ADMINISTRATION OF THE SACRAMENTS 

The Code first sets forth some rules for the administra¬ 
tion and reception of the Sacraments in general, which 
may be briefly summed up as follows: 

As the Sacraments of the New Law, instituted by Christ 
our Lord, are the chief means of sanctification and salva¬ 
tion, the greatest care and reverence must be taken that 
they be suitably and properly administered and received. 
It is forbidden to administer the Sacraments to heretics 
and schismatics, even though they may ask for them in 
good faith. It is necessary that they first renounce their 
errors and become reconciled to the Church. 

The Sacraments of Baptism, Confirmation, and Holy 
Orders, which imprint a character, cannot be received 
twice, i. e., absolutely; but if a prudent doubt exists 
whether they were in fact, or whether they were validly 
conferred, they may be repeated. 

In the celebration, administration, and reception of the 
Sacraments, the rites and ceremonies prescribed in the 
liturgical books of the Church must be accurately observed, 
and every one must follow his own rite, with due regard 
to canons 851, § 2, and 866. 

The Holy Oils to be used in the administration of Bap¬ 
tism, Confirmation, Extreme Unction, and Holy Orders, 
must be blessed by the bishop on Holy Thursday of each 
year, and old ones may not be used except in case of 
urgent necessity. Should the blessed oil be about to give 
out, other olive oil that is not blessed may be added, even 
repeatedly, but in smaller quantities than the holy oil. 

Each pastor must ask his Ordinary for the holy oils 
and keep them in a safe and becoming place in church 


216 POWERS CONCERNING THINGS 


under lock and key. He may not keep them in his house 
except in case of necessity, or for some other plausible 
reason, and only by express consent of the Ordinary. 

Beyond the fees established in accordance with can. 
1507, the minister of a Sacrament is not allowed to charge 
or demand anything, for whatever motive or on whatso¬ 
ever occasion, either directly by exaction, or indirectly 
by insinuation, for the administration of a Sacrament. 

A. Baptism 
(Can. 731-779) 

The Code distinguishes solemn from private baptism 
and defines the former as administered with all the rites 
and ceremonies prescribed in the liturgical books, while 
private or non-solemn baptism is conferred without these 
rites and ceremonies. 

1. The Minister. Although the right of baptizing is 
reserved to the pastor, and is therefore a strictly parochial 
right, yet it is evident from the very character of the local 
Ordinary that the latter is entitled to confer Baptism in 
any church or public oratory of his diocese, but not in 
private houses, except in the cases mentioned in the 
Code. When we say “local Ordinary,” we mean all those 
who go by this name. The local Ordinary may grant per¬ 
mission to another priest besides the pastor to baptize 
solemnly in any church or public oratory of his diocese. 
This permission may also be given to one who is only a 
deacon. 

When adults are to be baptized, the local Ordinary 
should be notified, if it can be done conveniently, in order 
that, if he so desires, he himself or a priest delegated by 
him may administer the Sacrament more solemnly. No 
strict obligation can be read into this canon, as is evi- 


BAPTISM 


217 

dent from the term deferatur as well as from the sub¬ 
junctive form employed. 

2. Rites and Ceremonies. Baptism should be adminis¬ 
tered solemnly in all cases except the one mentioned in 
can. 759. But the local Ordinary may, for weighty and 
plausible reasons, permit the ceremonies prescribed for 
infant Baptism to be used in baptizing adults. 

Can. 759 rules that in danger of death Baptism may be 
privately administered, but the Ordinary may not permit 
private Baptism to be conferred, except on non-Catholic 
adults who are baptized conditionally. In this latter case 
the ceremonies need not be supplied, which must otherwise 
be done if they were omitted. 

3. Godparents. Religious may be sponsors only with 
the permission of their superior (major or local) and in 
cases of urgent necessity. Clerics in sacris need the ex¬ 
press permission of their Ordinary. When in doubt as 
to whether one may be legally or licitly admitted to 
sponsorship, the pastor should consult the Ordinary if time 
permits. 

4. Time and Place for Baptism. The Code revokes 
and reprobates every statute, custom or privilege which 
would prevent the erection of a baptismal font in every 
parish church, and commands that every parish church 
should have its own baptismal font. It furthermore rules 
that the local Ordinary may, for the convenience of the 
faithful, permit or command another baptismal font to 
be placed in some other church or public oratory within 
the boundaries of a parish. 

The reasons for this permission may be bad roads or 
difficult communication, great distance, perhaps a large 
number of faithful. For temporary permission may be 
added: war conditions, civil prohibition of passage for 
reasons of health or contagious diseases, epidemics, etc. 


218 


POWERS CONCERNING THINGS 


Solemn Baptism, apart from cases of necessity, may not 
be administered in private houses except in the following 
circumstances: 

i°. If those to be baptized are the sons or grandsons of 
actual rulers, or of their prospective successors to the 
throne. When this privilege is desired, a petition must be 
sent directly to the Ordinary, or to the parish priest, both 
of whom are entitled to perform the rite; 

2°. If the local Ordinary, after prudent and conscien¬ 
tious deliberation, judges that there is a just and plausible 
cause for granting the permission in some extraordinary 
case. Such cases would be: if Catholics would demand to 
have their children baptized in the house of a Catholic 
consul, which may happen among foreigners; if the dis¬ 
tance from church would be very considerable, say, 
ten geographical miles. Other reasons may be sickness, 
even though not dangerous, of the one to be baptized, 
refusal of one of the parents to have the child baptized in 
a Catholic church, aversion against a certain church or 
pastor, which prudence might dictate not to increase. 

B. Confirmation 

i. The Sacrament of Confirmation must be adminis¬ 
tered by laying on the hands, anointing the forehead with 
chrism, and pronouncing the words prescribed in the 
pontifical book approved by the Church. 

The chrism to be used in the administration of this 
Sacrament must be blessed by a bishop, even though a 
priest may administer it, either by law or in virtue of an 
apostolic indult. 

The anointing is not to be performed with an instru¬ 
ment, but with the minister’s hand, placed upon the head 
of the subject. 


CONFIRMATION 


219 


This Sacrament of strength or zeal is distinct from 
Baptism, the indelible character of which it enlarges or 
deepens. Confirmation confers a grace distinct from the 
baptismal grace. It is pre-eminently the Sacrament of 
the Holy Ghost. Being essentially distinguished from 
the Sacrament of Baptism, it requires a distinct matter 
and form. 

2. The remote matter is the chrism, which is composed 
of balsam and olive oil. The latter is essential for the 
validity of the Sacrament. Balsam, too, belongs to the 
essence of the matter according to the Decree for the 
Armenians and the ancient Greek Euchologia. The valid¬ 
ity of the matter is, however, not affected by mingling 
other aromatics with the balsam. The blessing or conse¬ 
cration of the matter must be performed by a bishop. 
Whether a priest, with the permission of the Pope, could 
consecrate chrism is a speculative question. The affirma¬ 
tive view is certainly tenable. Licit administration re¬ 
quires that the consecration be performed by a Catholic 
bishop, and hence priests are never allowed to use 
chrism from a heretical or schismatic bishop. The vicar j 
general, even though he be a bishop, cannot lawfully bless 
the chrism. Lastly, the chrism must be blessed the same 
year in which it is used, counting from Holy Thursday 
to Holy Thursday. It is forbidden to use chrism blessed 
the year before, except in case of necessity. 

3. The proximate matter of Confirmation is the anoint¬ 
ment. This is performed by placing three or four fingers 
upon the forehead and using the thumb dipped in the holy 
chrism to anoint the same. The sign of the cross in the 
act of anointing is essential. 

§ 2 of can. 781 strictly forbids the use of any instru¬ 
ment (brush or cotton) in the act of Confirmation. The 
Holy Office has declared that the use of an instrument 


220 


POWERS CONCERNING THINGS 


endangers the validity of the Sacrament and ordered 
secret and conditional repetition of Confirmation in casu. 

The form is that prescribed by the Roman Pontifical: 
“Signo te signo crucis, et conUrmo te chrismate salutis, 
in nomine Patris et Filii et Spiritus Sancti,” the act of 
pronouncing the three Holy Names being accompanied by 
the triple sign of the cross. 

i. The Minister. The ordinary minister of Confirma¬ 
tion is the bishop, but a priest may act as extraordinary 
minister if he has received this power either by law or by 
a special indult of the Apostolic See. Who receives that 
faculty by law is stated in § 3. They are the Cardinals of 
the Holy Roman Church, according to the privileges enum¬ 
erated under can. 239, § 1, n. 23. Cardinals, therefore, 
may administer Confirmation anywhere and to any one, 
but must record the fact in the book especially reserved 
for recording Confirmations (can. 798). 

Others who may administer the Sacrament of Con¬ 
firmation by law are abbots nullius or prelates nullius, 
vicars Apostolic and prefects Apostolic. But these three 
kinds of ecclesiastics can make valid use of this faculty 
only within the boundaries of their own territory and dur¬ 
ing their term of office. Hence, for instance, the Vicar- 
Apostolic of North Carolina may administer Confirmation 
validly only within his own territory. On the other hand, 
he may, within that territory, also confirm validly such as 
are not his subjects by reason either of domicile or quasi¬ 
domicile, and may licitly confirm subjects of other dioceses 
if they have a letter of permission or other testimony from 
their own bishop or parish priest. By a special indult the 
Guardian (O. F. M.) of the Holy Sepulchre at Jerusalem 
may confirm persons of the Latin rite if no bishop of that 
rite residing in his own territory is at hand. 

The faculty to confirm is sometimes granted to mis- 


CONFIRMATION 


221 


sionaries who preside over vast provinces. Thus it was 
given for China and Chile. The condition is always added 
that they must use chrism blessed by a Catholic bishop. 
In the instruction which they receive together with the 
faculty, it is ordained that, whenever they administer this 
Sacrament, they must mention the special faculty in virtue 
of which they do so. But this is not required for the 
validity of the act. 

While vicars-Apostolic have this faculty by law, 
pro-vicars, during a vacancy, cannot confirm in virtue of 
their office, much less delegate other missionaries to ad¬ 
minister Confirmation. Any attempt to do so would be 
invalid, and the Sacrament would have to be re-adminis¬ 
tered. 

A priest of the Latin rite who enjoys this faculty by 
virtue of an indult, can administer Confirmation validly 
only to the faithful of his own rite, unless the indult ex¬ 
pressly grants him larger powers. 

Priests of the Oriental rite who are entitled either by 
virtue of a faculty or of a privilege to confirm children 
of their own rite immediately after Baptism, may not law¬ 
fully confer Confirmation on children of the Latin rite. 

A bishop may lawfully administer the sacrament of 
Confirmation in his own diocese, even to such as are not 
his subjects, unless their Ordinary has issued a special 
prohibition to the contrary. To confirm in a strange 
diocese he needs the at least reasonably presumed permis¬ 
sion of the local Ordinary, unless he confirms his own sub¬ 
jects, in which case he is not allowed to use crozier and 
mitre. 

A priest who has an Apostolic indult for adminis¬ 
tering Confirmation may licitly confirm subjects not his 
own in his own territory, provided the Ordinaries of the 
respective confirmandi have not expressly forbidden it. 


222 


POWERS CONCERNING THINGS 


Every bishop is in duty bound to administer this Sacra¬ 
ment to such of his subjects as becomingly and reason¬ 
ably ask for it, especially at the time of the canonical 
visitation. Priests who are endowed with an Apostolic 
privilege have the same duty towards those in whose 
favor the faculty was granted. 

An Ordinary who is lawfully prevented from, or has 
not the power of, administering Confirmation, should, as 
far as possible, take care that this Sacrament is conferred 
at least every five years. If he grievously neglects 
this duty of confirming his subjects, either personally or 
through another, the metropolitan should see to it that the 
matter is attended to and inform the Holy See. Legiti¬ 
mate causes excusing a bishop from administering Con¬ 
firmation within the term of five years, would be: pro¬ 
tracted illness, exile, and detention by higher superiors. 
The vicar-capitular has not the power to confirm, but 
should invite an outside bishop if this Sacrament has not 
been administered in the diocese for a long time. If griev¬ 
ous neglect has crept into a suffragan diocese, the metro¬ 
politan may compel or admonish the Ordinary of the same 
to comply with the law, but he may not administer Confir¬ 
mation without the suffragan’s permission because this 
case is not mentioned among those in which the metropoli¬ 
tan is authorized to supply the negligence of his suffragans. 

2. The Recipient. One who is not baptized cannot be 
validly confirmed because he is not yet initiated into the 
Christian mysteries or incorporated in the mystic body of 
Christ, which initiation or incorporation confers the right 
to receive the other Sacraments. Besides, in order to 
receive this Sacrament licitly and profitably, one must be 
in the state of grace. For though the indelible character 
is impressed even if one is not in the state of sanctifying 
grace, the sacramental grace, or, as a text of the Decretum 


CONFIRMATION 


223 


Gratiani says, the sevenfold grace of the Holy Ghost with 
the plenitude of holiness and knowledge and strength does 
not descend in Confirmation if this Sacrament is received 
in the state of mortal sin. Besides, one who has attained 
the age of discretion must he sufficiently instructed in the 
more important truths of faith as well as the nature and 
efficacy of Confirmation. 

Can. 788 mentions the custom of the Latin Church, 
which differs from that of the Greek, to defer Confirma¬ 
tion to the age of discretion, i. e., about the seventh year. 
This custom, the text says, is quite proper, but the Sacra¬ 
ment may be administered at an earlier age if the child 
is in danger of death or the minister judges that there 
are other just and weighty reasons. Such reasons would 
be, e. g., great distance preventing one from reaching a 
place within the time limit of five years,—surely a rare 
thing. 

Can. 789 provides that the confirmandi, if there are a 
number of them, should be present at the first imposition 
or extension of the hands, and not leave before the whole 
rite or ceremony is completed. This is not, however, a 
condition affecting validity. 

3. Time and Place. This Sacrament may be conferred 
at any time, but it is most fittingly administered in the 
week after Pentecost. 

Although the proper place for administering Confirma¬ 
tion is the church, it may be conferred in any decent place, 
provided the minister has a just and plausible reason for 
so doing. Hence Confirmation may be administered in 
any private or semi-public oratory, and even in private 
houses if they are neat and properly kept; also, during 
the time of an interdict, in an interdicted place. 

Every bishop has the right to administer Confirmation 
within the boundaries of his diocese, also in exempt places. 


224 


POWERS CONCERNING THINGS 


When certain exempt regulars, insisting on their privileges, 
contended that the bishop was not entitled to administer 
Confirmation in their (parochial or non-parochial) 
churches, the S. Congregation decided in favor of the 
bishop, and Benedict XIV ratified the decision. 

When confirming the bishop may make use of throne 
and baldachin and pontifical regalia. 

Exempt places here are monasteries, convents, acade¬ 
mies, colleges, churches and chapels (such as are plcno 
hire incorporated) of exempt religious, or other exempt 
persons; but not the exempt territories of prelates or ab¬ 
bots nullius, because these prelates are entitled to admin¬ 
ister Confirmation in their own districts. 

4. Sponsors. A most ancient ecclesiastical custom de¬ 
mands that, as at Baptism, so also at Confirmation, a 
sponsor be employed if possible. He should not stand 
for more than one or two confirmandi, unless the minister 
deems it prudent to recede from that rule for a just cause. 
Each confirmandus should have but one sponsor. 

The Code says that it is left to the minister to decide 
whether one man may be sponsor for all males, and one 
woman for all girls. And although the Roman Court 
was somewhat slow in admitting the custom which prevails 
in our country, yet it is quite reasonable. For, on the one 
hand, the duties of the sponsors are less pressing nowa¬ 
days, while, on the other, it is often embarrassing for the 
pastor to provide many sponsors, and to find room for 
them, especially in small churches. 

The requisites for valid sponsorship are thus described: 

i°. One must be confirmed, have the use of reason and 
the intention to assume the office of sponsor. 

2 0 . He or she must belong to no heretical or schismatic 
sect, nor be under any of the penalties mentioned in can. 
765, n. 2. 


CONFIRMATION 


225 

3°. He or she must be neither the father nor the mother 
nor the consort of the one to be confirmed. 

4°. The sponsor must be appointed either by the con- 
firmandus, his parents or guardians, or, if these should 
fail or refuse to appoint a sponsor, he is to be designated 
by the minister or pastor. 

5°. The sponsor must physically touch the confirmandus 
in the act of confirmation, either personally or by proxy. 

To be licitly admitted to sponsorship at Confirmation: 

(a) One must not have been the baptismal sponsor, 
unless there be a plausible reason to disregard this rule, 
or Confirmation is legitimately administered immediately 
after Baptism. 

(b) The sponsor must be of the same sex as the one 
to be confirmed, unless the minister has a good reason 
to depart from this regulation in an individual case. 

(c) The other rules mentioned in can. 766 must be 
observed. 

Confirmation validly conferred entails a spiritual rela¬ 
tionship between the confirmed person and the sponsor, 
in virtue of which the latter is obliged to take a special 
and perpetual interest in the welfare of his godchild and 
to see to it that he or she receives a Christian education. 
However, according to can. 1079, this spiritual relation¬ 
ship no longer constitutes a matrimonial impediment and 
is therefore restricted to the merely spiritual part of edu¬ 
cation in case the parents fail to do their duty. That god¬ 
parents, if able, may and should assist their spiritual 
children in case of need is a dictate of natural reason. 

5. Recording. The Code, like the Rituale Romanum, 
prescribes that a Confirmation record be kept in every 
church in which this Sacrament is administered. This 
book must contain the names of the minister, of the per¬ 
sons confirmed and their parents and sponsors, as well as 


226 POWERS CONCERNING THINGS 


the date of Confirmation. All these entries must be 
made by the pastor in a book specially set apart for the 
recording of Confirmations. Besides, he must also enter 
every Confirmation in the baptismal record. 

C. The Holy Eucharist 

i. The Holy Sacrifice of the Mass and Its Celebration 

Concelebration, except at the ordination of priests and 
the consecration of bishops, is not allowed in the Latin 
Church. 

The local Ordinary grants the celebret or pastor bonus 
to the secular clergy; the religious superior to his own 
subjects. It must be an authentic document, that is, signed 
and sealed by the Ordinary or the superior. It should not 
be older than six months, or at most a year. Within six 
months a canonical impediment may be contracted, as per 
can. 994. If a priest belongs to the Oriental Church, he 
must show letters from the S. Congregation for the 
Oriental Church. 

Any special diocesan statutes concerning this matter, 
which are in keeping with the present law, must be ob¬ 
served by all, including exempt religious, unless they wish 
to say Mass in a church of their own institute. But if a 
religious wishes to say Mass in a church that is in charge 
of secular priests, or of religious of a different order or 
congregation, he is bound not only by the general law of 
the Church, but also by the particular laws of the diocese. 
It is evident that the religious superior of the church where 
the religious wishes to say Mass is entitled to demand the 
celebret. 

Bination. With the exception of Christmas and All 
Souls’ Day, on which every priest may, if he wishes, say 
three Masses, no priest is allowed to say more than one 


THE HOLY EUCHARIST 


227 

Mass a day, unless a papal indult or faculty from the 
Ordinary permits him to do so. 

The Ordinary cannot grant this faculty unless he pru¬ 
dently judges that there is such a lack of priests as to 
leave a considerable number of the faithful without Mass 
on a holyday of obligation. 

(1) The penuria sacerdotum, or lack of priests, must 
be such that there is no other priest who could conveni¬ 
ently say the second Mass. There may perhaps be travel¬ 
ing priests, but unknown or of uncertain standing or phys¬ 
ical condition, in which case they must be looked upon as 
not present. On the other hand, if a priest is present 
who is still fasting and able to say Mass, he may be com¬ 
pelled by the Ordinary to say Mass in order to prevent 
bination. But in that case the pastor must furnish a 
stipend, and if he cannot do so, the people are obliged to 
supply the deficiency, and if they are too poor, the Ordi¬ 
nary must procure the means. Where there is a sufficient 
number of priests, bination is not permitted, because the 
case of necessity is not verified, and other priests, as 
Benedict XIV says, are bound to the people by virtue of 
sacred orders. 

(2) The convenience or necessity of the people. Con¬ 
venience is to be understood relatively to the place or 
number of the faithful who would be deprived of Mass. 
Bination is permitted for the benefit of those who assist 
at, not of those who say, Mass. The favor is conditioned 
by distance or insufficiency of room, or the convenience 
of the people. Thus if a priest has to attend two parishes 
or missions, which are about half a league (two miles) 
apart, this circumstance suffices to justify bination. The 
size of the church is also to be considered. If the parish 
is large and the church building comparatively small, that 
is sufficient reason for binating. The convenience of the 


228 POWERS CONCERNING THINGS 


people, which falls under the heading of necessity estab¬ 
lished by law, but is included in the power of the Ordi¬ 
nary, chiefly depends on the number of the faithful. Our 
text says, “notabilis Udelium pars” What is “a con¬ 
siderable part” of a congregation ? Benedict XIV once 
explained this term as meaning plures, or several. But 
no general rule can be deduced from the various deci¬ 
sions of the Roman Congregations. Sometimes fifteen 
or twenty persons were considered insufficient to permit 
bination, whereas on other occasions it was left to the 
“charity and conscience of the Prefect Apostolic” to grant 
the faculty of binating when only ten or fifteen servi 
(slaves) were present. Hence no precise number can 
be laid down. But it is undoubtedly the mind of the 
Church that, on the one hand, there must be a real 
necessity and, on the other, the Ordinary should not be 
too scrupulous about granting the faculty, but provide 
for the spiritual welfare of the faithful, so that all may be 
enabled to comply easily with the precept of hearing Mass. 
It follows that in large congregations with a small number 
of priests each may say two Masses on Sundays and holy- 
days of obligation, in order to accommodate the people, 
some of whom have to stay at home until the others re¬ 
turn from church, and so forth. 

(3) The faculty of binating, when granted for reasons 
of necessity and convenience, cannot be made use of except 
on Sundays and holydays of obligation. Therefore bina¬ 
tion on suppressed feasts is not permitted. Nor can the 
Ordinary grant the faculty for merely devotional purposes, 
for instance, on the first Friday of the month. The Holy 
Office has declined to permit bination two or three times 
a year to satisfy the pious desires of neophytes to receive 
Holy Communion, considering all the circumstances of 
time and person in Corea, a missionary country. Such a 


THE HOLY EUCHARIST 


229 


permission would not lie within the power of the Ordinary, 
but would require an Apostolic indult. 

Permission is never given to say more than two Masses 
a day. 

The Code says that the Ordinary grants the faculty, 
which signifies that he should grant it to all pastors or 
curates who may need it. 

Attention may be drawn to the decree of the Holy 
Office of March 22, 1923, concerning the fast. 1 The de¬ 
cree, which may perhaps be modified or elucidated later, 
states (a) the occasion on which the full rigor of the law 
of the Eucharistic fast may be mitigated: it is either 
bination or a late hour for saying Mass; then (b) it sets 
forth the reasons for which dispensation may be granted, 
vis: grave damnum, infirma valetudo, nimis sacri mini- 
sterii labor, and other reasonable causes; (c) the authori¬ 
ties who can grant the dispensation are: the Holy Office, 
which may either dispense individual petitioners or grant 
habitual faculties to the Ordinaries; and the Ordinaries 
in more urgent cases, with reference to can. 81, but under 
the following conditions: that only per modum potus (ex¬ 
clusive, however, of any intoxicating liquor) something 
be taken, that scandal be effectively removed; that the 
Ploly See be informed as soon as possible of the dispensa¬ 
tion granted, and that dispensation be granted only for the 
spiritual advantage of the faithful, and not for the private 
devotion or convenience of the priest. 

Dress and Assistance. The priest, when saying Mass, 
shall wear the cassock ( soutane ) and the sacred vestments 
prescribed by his rite; but no ring or skullcap, unless 
he is a cardinal, a bishop, or a blessed abbot, or unless an 
Apostolic indult permits him to wear these insignia. 

With the exception of bishops and prelates entitled to 

1 Eccl. Review, Vol. 68 , n. 6 , p. 580 f.; 585 f. 


230 


POWERS CONCERNING THINGS 


the use of pontificals, no priest is allowed to have an as¬ 
sistant priest in celebrating Mass merely for the sake 
of honor or solemnity. 

The right of pontificating belongs by law to Cardinals 
outside of Rome. If they pontificate in cathedral 
churches, which they may do upon due notice to the Ordi¬ 
nary of the diocese, they may employ a presbyter assistens. 
Bishops and archbishops are expressly mentioned as en¬ 
titled to this privilege. Other prelates who enjoy it are 
abbates regiminis , after they have been blessed by the 
bishop, and abbots or prelates nullius. Supranumerary 
prothonotaries Apostolic may also have a presbyter assis- 
tens if no bishop or prelate of higher rank than a bishop 
is present. Prothonotaries Apostolic ad instar may em¬ 
ploy an assistant priest only when they pontificate outside 
their church or in other churches when no bishop or 
higher prelate is present. Canons of cathedral or col¬ 
legiate churches, although dignitaries, and provosts, are 
not allowed to have a presbyter assistens. Much less 
can the custom, even though immemorable, be tolerated 
that simple priests celebrate Mass with an assistant 
priest. 

But what about the custom of employing a presbyter 
assistens at the first Mass of a newly ordained priest? 
This question was placed before the Sacred Congregation, 
who answered: posse tolerari. In itself this answer does 
not sound favorable, since it implies a mere negative tol¬ 
eration ; yet we believe the Code does not mean to repro¬ 
bate the custom, because a presbyter assistens is, on such 
occasions, not employed for mere honor or pomp, but for 
the purpose of aiding the neopresbyter. 

Place. Bishops who by law enjoy the privilege of a 
portable altar, may set up such an altar in a bedroom, 


THE HOLY EUCHARIST 


2 3 x 


provided, of course, that the aspect and appearance of 
this room are such as not to offend against decorum. 

The local Ordinary, or, in the case of an exempt re¬ 
ligious house, the higher superior, may grant permission 
to say Mass outside a church or oratory, upon a conse¬ 
crated altar stone, provided the place is decent (no bed 
room) and the permission is granted for a just and rea¬ 
sonable cause, for extraordinary cases only, and not ha¬ 
bitually. 

The local Ordinary is the one commissioned to watch 
over his diocese, and is responsible for abuses which may 
creep into it. He may grant the permission in question 
under the following conditions: 

(1) That Mass be said upon an altar stone which con¬ 
tains sacred relics and is validly consecrated and prepared. 

(2) That the place in which Mass is to be said is decent 
or respectable. Decency must be gauged not by adorn¬ 
ment merely, but by the respect and reverence due to the 
august Sacrifice. It is forbidden to say Mass in the 
churches of heretics and schismatics (see can. 823, § 1), 
and it would be improper to offer the holy Sacrifice in the 
private houses of unbelievers or non-Catholics. Theatres 
and Masonic temples could hardly be styled respectable 
places for saying Mass, although the former might be 
used in case of extreme necessity. The open air would 
be a decent place. 

(3) That no permission be given to say Mass in bed¬ 
rooms (in cubicidis). Hence it would be better, in case 
of necessity, to choose the living or sitting room for say¬ 
ing Mass. However, the S. C. Prop, has given permission 
to say Mass in the sleeping room of a sick person (in 
oubicnlo infirmi ) if there is no other way of administering 
the Viaticum. But then the minister should see to it 


232 


POWERS CONCERNING THINGS 


that there are no indecent or superstitious emblems or 
pictures in the room. 2 

(4) That the permission be granted for a just and 
reasonable cause. As stated above, the Blessed Sacra¬ 
ment may never be exposed to irreverence, nor may the 
faithful be scandalized. A just reason would be if an 
epidemic raged in the town or city which would neces¬ 
sitate the closing of the churches; if there were no Cath¬ 
olic church or public oratory in the town or city, or if the 
precept of receiving the Easter communion could not oth¬ 
erwise be complied with; or if the administration 
of the Viaticum required it. War and social disturb¬ 
ances would be an additional reason for granting the per¬ 
mission. 

(5) This permission, however, is not to be understood 
as a habitual faculty or a right to be used by the priest 
ad libitum, but only, as the text says, “in casu extraordi- 
nario et per modum actus” This would seem to imply 
that a priest should ask for it every time he deems it 
necessary. However, we believe the Ordinary can grant 
the permission to priests in such a way that they would 
not have to ask for it every time they needed it, provided, 
of course, the conditions set forth in this section be pres¬ 
ent. Lastly, it may be noted that this permission may be 
granted so as to allow Mass to be said in private houses 
and on any day; but the permission must be issued gratis. 
It has, indeed, been authentically declared that the fac- 
culty granted to the Ordinaries in can. 822, § 4, must be 
interpreted restrictive, i. e., without undue or arbitrary ex- 

2 S. C. P. F., Sept. 6, 1821 (Col., n. 764). If a bedroom is 
turned into a sort of funeral chapel after the death of a 
person, either a cleric or a layman, this room could hardly be 
styled a bedroom any more, and therefore the law would not 
apply to it. (Ephmerides Liturgicae, Sept., 1920). 


MASS STIPENDS 


233 

tension. However, our comments on the same, as given 
above, will, we believe bear juridicial scrutiny . 3 

Mass Stipends. It belongs to the Ordinary of the dio¬ 
cese to fix, if possible by a synodal decree, the amount of a 
manual Mass stipend, and priests are not allowed to de¬ 
mand more. Where there is no episcopal decree on the 
subject, the diocesan custom must be observed. Religious, 
even though exempt, must abide by the episcopal decree or 
diocesan custom. 

A priest is allowed to accept a stipend which is larger 
than the one determined by diocesan statute or by custom; 
and, unless the Ordinary has forbidden it, he may also ac¬ 
cept a lesser one. The prohibition to receive a stipend 
below the customary sum must be made antecedently, and 
it would not be just to punish a priest for doing so if no 
prohibition had been promulgated. 

Administrators of pious institutions, and all, whether 
clergymen or laymen, who are in any way bound to have 
Mass obligations fulfilled, must send the Masses not yet 
said to their Ordinaries at the end of each year in some 
manner to be determined by the latter. 

The time for complying with this obligation runs, for 
quasi-manual stipends, from the end of the year during 
which the Masses should have been said, and for manual 
stipends from the day on which the obligation was ac¬ 
cepted, with due regard to the intention of the donor. 

Causae piae are pious institutions under the direction 
of the local Ordinary, which generally have a number of 
Masses either imposed by the will of founders or offered 
by the faithful. 

Priests who have Masses that may be sent away or dis¬ 
tributed to others may freely do so, provided they observe 
the canons, nor are they obliged to ask the Ordinary’s 

3 Cotnmissio Pont., Oct. 16, 1919 (d. dp. S., XI, 478) • 


234 


POWERS CONCERNING THINGS 


permission, since the latter would act not only beyond but 
against the law if he were to prevent the sending of 
Masses outside the diocese. Therefore any such diocesan 
statute has no obligatory character. 4 

The right and duty of watching over the fulfilment of 
Mass obligations belong to the Ordinary of the diocese 
with regard to the churches of secular priests, but to the 
superiors of the religious with regard to their churches. 

Rectors of churches and other pious institutions, 
whether in charge of seculars or religious, where Mass 
stipends are wont to be received, shall keep a special book, 
in which the stipends are to be entered as to number, in¬ 
tention, amount, and date of celebration. 

The Ordinaries are obliged to inspect these books at 
least once a year, either personally or by a deputy. 

2. Holy Communion 

The local Ordinary may grant permission to a deacon, 
who is the extraordinary minister of Holy Communion, to 
distribute the same for a grave reason, and this permission 
may in case of necessity be lawfully presumed. 

Under the same conditions the Ordinary may also im¬ 
part to a priest who is not a pastor permission to bring 
Holy Communion publicly to the sick. 

The Code in can. 859, § 2 regulates the Easter time thus : 
“The time for receiving the Paschal Communion extends 
from Palm Sunday to Low Sunday; but the local Ordi¬ 
naries may prolong the time for all the faithful of their 
dioceses from Laetare Sunday to Trinity Sunday, both 
inclusive, provided circumstances of persons and place 
demand such a prolongation.” 

May our Ordinaries still make use of the indults men- 

4 S. C. C., Feb. 19, 1921 (A. Ap. S., XIII, 228 f.) 


PENANCE 


235 


tioned above which permit the extension of the Easter 
season to the First Sunday in Lent? Our answer is: 
If the indults are considered as such, merely as indults, 
then, by reason of can. 4, they may even now be applied. 
But if the indults are taken as part and parcel of the 
decrees of our plenary councils, then they are to be 
looked upon as abrogated by virtue of can. 6. Since 
favors, like privileges, are permanent (can. 70), it is safe 
to say that said indults may still be made use of. 

Holy Communion may be distributed wherever Mass 
may *be said, even in private oratories, unless the local 
Ordinary for just reasons forbids it in some particular 
case. 

This text is based on a general decree of the Congre¬ 
gation of Rites permitting the distribution of Holy Com¬ 
munion to all the faithful who assist at Mass in a private 
oratory. But the decree expressly says: with due regard 
to the rights of the pastor, and consequently these should 
never be curtailed or jeopardized, otherwise the Ordinary 
may forbid the distribution of Holy Communion. 

D. The Sacrament of Penance 

1. Jurisdiction. The local Ordinary enjoys ordinary 
jurisdiction within his territory, to which, as a rule, he is 
restricted; but he can also licitly and validly absolve his 
own subjects anywhere (can. 873, § 1; can. 881, § 2). 

May local Ordinaries also absolve religious of exempt 
clerical institutes? There is no doubt that they can ab¬ 
solve them by reason of can. 574, § 1, which gives them 
power to confer delegated jurisdiction for hearing con¬ 
fessions of exempt religious. Besides, can. 519 also ap¬ 
plies to local Ordinaries. 

2. Grant of Jurisdiction. Delegated jurisdiction is 


236 POWERS CONCERNING THINGS 


conferred by the local Ordinary in whose diocese the con¬ 
fessions are to be heard, on priests, secular as well as re¬ 
ligious, even exempt religious, for hearing confessions of 
both secular and religious persons; but priests of religious 
institutes, though thus endowed with delegated jurisdic¬ 
tion, in addition thereto need the permission of their su¬ 
periors, in order to absolve licitly, with due regard always 
to can. 519. 

Now the local Ordinary is the one in whose diocese the 
confessions are heard. Hence it is not sufficient that a 
religious obtain what we call the faculties for the diocese 
in which the religious house is located, to validly hear 
the confessions of secular persons in another diocese. 
These faculties do not overlap. Hence if a religious 
whose house is located in the diocese of St. Joseph, wishes 
to hear confessions in any part of the Des Moines diocese, 
he has to obtain the resp. faculty from the Ordinary of 
Des Moines. This jurisdiction is needed even in the case 
of a penitent who has an Apostolic indult permitting him 
to choose any confessor he pleases. The same holds good 
concerning any secular priest who needs delegated juris¬ 
diction. 

Religions need the least presumed permission of their 
respective superiors. Religious, before being presented to 
the Ordinary for approval, are usually examined as to 
their qualification for that office by their superiors or a 
board of professors. If a religious thus examined is ap¬ 
proved by the Ordinary and continues to hear confessions 
without objection on the part of his superior, the permis¬ 
sion may be presumed, even though it has not been asked 
for in every single instance. Thus, also, permission may 
be presumed if one is sent to assist another on Sunday. 

Note that this permission nowise affects the validity 
of confession as long as the jurisdiction delegated by the 


PENANCE 


2 37 


Ordinary is not withdrawn. The local Ordinaries shall 
not grant jurisdiction to hear confessions habitually to re¬ 
ligious who are not presented by their own superiors. On 
the other hand they shall not, except for grave reasons, re¬ 
fuse faculties to such as are properly presented by their 
superiors, with due regard, however, to canon 877. 

A serious reason for refusing faculties would be lack 
of knowledge, moral deficiency, or want of pastoral pru¬ 
dence. 

Secular as well as religious priests, of whatever rank 
or office, need a special jurisdiction for validly and licitly 
hearing the confessions of female religious and their nov¬ 
ices. Only Cardinals are exempt from this general law. 
Can. 522 and 523 mention some .modifications of this 
general law which no contrary particular law or privilege 
can nullify or alter. 

This jurisdiction is granted by the Ordinary in whose 
diocese the religious house is located. The exceptions 
refer to Sisters who, for conscience sake, wish to go to a 
confessor approved by the Ordinary for hearing women’s 
confessions in a church or semi-public oratory, and to sick 
Sisters, who may call in any confessor approved for 
women. (Can. 522, 523.) 

In exempt religious institutes of clerics, delegated juris¬ 
diction for hearing the confessions of the professed mem¬ 
bers, novices, and other persons mentioned in can. 514, § 
1, may be given by the superior according to the Constitu¬ 
tions. The same superior may also grant such jurisdiction 
to secular priests or priests of another religious institute. 

I11 exempt lay institutes the superior proposes the con¬ 
fessor, who must obtain jurisdiction —not only permission 
—from the Ordinary in whose diocese the religious house 
is located. 

We have no reason to retract what we stated in our 


2 3 8 POWERS CONCERNING THINGS 

Commentary on the phrase or term “ad suae conscientiae 
tranquillitatem.” It does not imply a conditio sine qua 
non of valid confession, but simply a caution to penitents 
as well as to the confessor against evading the regular 
confessors. 

3. Requisites for the Grant. The local Ordinaries shall 
not grant jurisdiction, nor the religious superior jurisdic¬ 
tion or license for hearing confessions except to such as 
have been found fit upon examination. An exception may 
be made in favor of those whose theological competency 
is sufficiently known from other sources. 

Should the Ordinary or religious superior have a pru¬ 
dent doubt as to whether a priest once approved con¬ 
tinues to be fit, they may submit him to a new doctrinal 
examination, even though he be a pastor or canon peni¬ 
tentiary. 

Here stress is laid on knowledge, and consequently the 
moral qualifications need not be re-examined because it 
might reflect on the priest’s character. The Ordinary 
is entitled to subject any confessor even though he be a 
pastor or penitentiary canon to an examination. Also 
one whose competence was assumed may be submitted to 
an examination after he has been given the faculties. The 
religious superior may submit a religious to a new ex¬ 
amination in case he has extra-sacramental knowledge 
of his doctrinal deficiency on some point. 

Delegated jurisdiction, or the license for hearing con¬ 
fessions, may be limited, but local Ordinaries and re¬ 
ligious superiors should not restrict it unreasonably. This 

1 The regulars claimed exemption from all restrictions, but 
Alexander VII, Jan. 30, 1659, proscribed the proposition: 

“Non possunt Episcopi limitare seu restringere approbationes, 
guas regularibus concedunt ad confessiones audiendas, neque 
fillq ex parte revocare,” Cfr. Benedict XIV, Instit., 86, n. IX. 


PENANCE 


239 


excludes no class of clergy who need delegated jurisdic¬ 
tion. Therefore also exempt religious 1 who obtain dele¬ 
gated jurisdiction either from the local Ordinary or from 
their superior may have their jurisdiction limited. But 
the reason for so doing should at least have the semblance 
of justice. The S. Congregations have more than once 
admonished Ordinaries not to vex religious with unneces¬ 
sary restrictions. 2 Any limitations should be based on 
unfitness, as resulting from the examination, as the Con¬ 
stitution of Clement X, “ Superna,” plainly states. 3 Re¬ 
strictions may be made as to persons, place and time. As 
to persons it may be that a priest may be too young to 
hear women’s confessions, or may be suited for one class 
of persons but not for another, etc. The same reasons 
would also justify limitation as to place. As to time, the 
Constitution of Clement X distinguishes between priests 
who were found generally fit, and others who proved less 
or not quite fit in the examination. De Lugo says the 
bishop may have a reasonable suspicion that one approved 
forever might care little for further study or intellectual 
improvement, or the moral character of the candidate may 
not be fully known to him. 4 The Ordinary should not 
make the exercise of delegated jurisdiction dependent on 
the permission of the parish priest; 5 in fact, he should 
not lay down too many conditions. 

For the valid hearing of confessions, jurisdiction must 
be granted expressly, either in writing or by word of 
mouth; but nothing is to he charged for the grant. Tacitly 

2 S. C. EE. et RR., Sept. 13, 1641; Sept. 22, 1645 (Bizzarri, 
l c., p. 25 f.) ; S. C. P. F., Dec. 11, 1838, ad 5 {Coll., n. 879). 

3 See § 4, and Innocent XIII, Apostolici ministern” May 23, 
1723, §§ 16, 19 

4 Ballerini-Palmieri, Opus Theol. Moral., V, p. 287. 

5 S. Rit. C., May 13, 1719 {Dec. Auth., n. 2264). 


240 


POWERS CONCERNING THINGS 


granted jurisdiction is entirely rejected. One would 
look in vain for the word “express” in the papal Con¬ 
stitutions quoted by Cardinal Gasparri, though its equiv¬ 
alent is certainly to be found there. What is tacit 
jurisdiction? It is one which an Ordinary or superior 
knows to be exercised by his subjects, and to which he 
does not object, although he could easily do so. For in¬ 
stance, a bishop calls a missionary from another diocese to 
give a mission in a parish of his own territory. Thereby 
he was formerly supposed to have granted him the neces¬ 
sary faculties for hearing confessions. Such tacitly 
granted jurisdiction can no longer be held to be sufficient 
for validly hearing confessions. There must be an ex¬ 
press grant. The Ordinary in calling a missionary must 
explicitly confer upon him delegated jurisdiction, and the 
pastor must expressly obtain the same for a missionary, 
unless the latter belongs to the diocese or has obtained 
faculties for the diocese in which he is to give the mission. 

4. Revoking Jurisdiction. Local Ordinaries shall not 
revoke or suspend jurisdiction or license for hearing con¬ 
fessions, except for a grave reason. But if there is such 
a reason, the local Ordinary may also forbid the pastor or 
canon penitentiary to exercise the office of confessor, with 
due regard, however, to the right of appeal in devolutivo 
to the Apostolic See. In the case of a domus formata, 
the bishop is not allowed, without having first consulted 
the Apostolic See, to take away jurisdiction from all con¬ 
fessors of a religious house at the same time. 

Revoking the faculties or jurisdiction affects the valid¬ 
ity of confessions, while the recall of the license only con¬ 
cerns licitness, but may reflect on the moral character and 
reputation of the confessor. Hence it is that a grave 
reason is required for the revocation of either. Such a 
reason is stated in a decree of 1615 and styled “a reason 


PENANCE 


241 


connected with confession.” This apposition is further 
determined in the Constitution of Clement X, “Superna,” 
which indeed speaks only of regulars, but may be said to 
cover our case, which includes both religious and secular 
clerics. It is stated there that if religious live scandalously 
or dishonorably, or if they have committed a crime which, 
according to the prudent judgment of the bishop, demands 
suspension from hearing confessions, these would be rea¬ 
sons justifying such suspension. 

The text draws a distinction between domus formata 
and non-formata, the former being a house in which live 
at least six professed members, four of whom are priests; 
while the domus non-formata is one with less than this 
number. 

The Code implies that only in the case of a domus for¬ 
mata must the Holy See be consulted before the bishop 
can suspend all the priests of a community from hearing 
confessions. In smaller communities, which have not at 
least six members, four of whom are priests, all the priests 
may be suspended by the bishop from hearing the confes¬ 
sions of lay people or secular priests or non-exempt re¬ 
ligious. From hearing the confessions of exempt re¬ 
ligious the Ordinary cannot suspend exempt religious, 
since these receive delegated jurisdiction from their own 
superiors. If a bishop should attempt such suspension in 
the case mentioned ( domus formata), it would be the 
metropolitan’s right and duty to remind him of can. 880, 
§ 3. On the other hand, the Ordinary may, for a grave 
reason, without asking or notifying the superior, remove 
or suspend a religious from hearing the confessions of 
female religious. But if the female religious be subject 
to a religious exempt superior, the latter would be entitled 
to present another religious for approval or examination, 
in order to obtain jurisdiction. 


242 


POWERS CONCERNING THINGS 


It may also be noted that the Code in this latter case 
uses the term “bishop.” Why ? It seems certain that the 
reason is to grant this power only to the bishop, not to 
the vicar-general or the administrator. 

Furthermore, it is probable that a recall of jurisdiction 
granted after due examination is invalid if made without 
just reason. 

5. Confession at Sea. Any priest traveling on the 
ocean may hear the confessions of all the faithful who 
travel with him on board the same ship, although the 
vessel on its trip may pass, or even stop for some time at, 
various places subject to different Ordinaries. But in 
order to absolve these travelers validly and licitly the 
priest must have duly obtained the faculty either from his 
own Ordinary, or from the Ordinary of the place he sails 
from, or from the Ordinary of any port which the vessel 
passes. As often as the vessel stops on its trip, the 
priests endowed with faculties may validly and licitly 
hear the confessions of such of the faithful as may for 
any reason visit the vessel, as well as the confessions of 
those who approach them for that purpose when they go 
on land for a short stop. In this latter case, they may ab¬ 
solve also from cases reserved to the Ordinary of the dio¬ 
cese where they stop. 


Reservation of Sins 

Those who possess ordinary power for granting facul¬ 
ties to hear confession or to inflict censures, are em¬ 
powered to call certain cases before their tribunal, thus 
restricting the power of absolving vested in their infer¬ 
iors. However, vicars-capitular and vicars-general may 
not use this power of restricting without a special man¬ 
date. This avocatio or restriction of cases is called 


RESERVATION OF SINS 


243 


reservation. Local Ordinaries should not reserve sins, 
unless the matter has been discussed at a diocesan synod, 
or consultation with the Cathedral Chapter and some of 
the more prudent and experienced directors of souls 
has made evident the necessity or utility of a reserva¬ 
tion. 

Among the superiors of exempt clerical institutes, the 
superior general, and in autonomous monasteries the ab¬ 
bot, with his councillors, may reserve sins of their sub¬ 
jects, with due regard, however, to can. 518, § 1, and to 
can. 519. 

Clement VIII and a decree of the S. C. of Bishops and 
Regulars had emphasized, not the power of exempt re¬ 
ligious, for this follows from exemption itself, but the 
need of prudence and moderation in reserving cases, the 
number of which was reduced to eleven, but is still more 
restricted by can. 897. 

The superiors to whom can. 896 applies are those of 
exempt clerical orders or congregations. Superiors of 
exempt lay or of non-exempt clerical congregations do not 
enjoy the power of reserving cases. For the latter class 
the Ordinary may establish reservations, as also the Apos¬ 
tolic See when approving the Constitutions. 

In centralized religious orders the superior general alone 
can reserve cases. In doing so, he must proceed like 
the bishop, i. e., consult with his councillors and, if he 
wishes, with others who are experienced in the direction of 
souls. It is true he is not bound by their advice, for the 
text of can. 895, to which our canon refers, does not re¬ 
quire their consent. But it would be folly and a grievous 
transgression of an important law in a serious matter not 
to obtain the advice of the councillors. 

The abbot of an autonomous monastery must proceed in 
the same manner. By the way it may be noted that 


244 


POWERS CONCERNING THINGS 


neither the Abbot Primate of the Benedictine Order, nor 
the Abbot President of each congregation, has any power 
with regard to reserving cases. 

Our canon, lastly, draws attention to can. 518, §1, and 
can. 519. The former prescribes, in accordance with 
an enactment of Clement VIII, that a number of con¬ 
fessors shall be appointed in each house for absolving 
from reserved cases. Can. 519 grants to any priest 
approved by the Ordinary the right of absolving 
any religious from cases reserved by the religious 
superior. 

The cases to be reserved shall be few, namely, three, or 
at most four , of the more grievous and atrocious external 
crimes, specifically determined. The reservation itself 
should not remain in force longer than is necessary to 
uproot some inveterate public crime and to restore Chris¬ 
tian discipline (can. 897). 

But Ordinaries, and religious superiors as well, shall 
refrain from reserving sins already reserved to the Holy 
See by reason of the censures attached to them, and, as a 
rule, shall not reserve sins which the law has laid under 
censure, even though this censure be not reserved to any 
one in particular (can. 898). 

Here the question may occur to the reader: Does can. 
898 invalidate reservation of sins already reserved by law, 
and more especially reserved to the Apostolic See? We 
answer: The text of can. 898 may be divided into three 
clauses, to wit: 

1) Ordinaries shall abstain from reserving to them¬ 
selves cases which are already reserved under censure to 
the Holy See; 

2) They shall, as a rule , abstain from reserving cases 
reserved under censure by law. Hither belong the cases 
reserved by law to the Ordinaries. 


RESERVATION OF SINS 


245 


3) They shall, as a rule, abstain from reserving cases 
reserved to no one, but reserved by law. 

The first prohibition is unconditional; but the second 
and third are conditioned by the adverb regulariter. 
Hence reservations made by and to the Apostolic See 
should not be made episcopal reservations in any case. 

But cases reserved by law to the Ordinaries, or re¬ 
served to no one, have a phrase attached, viz.: “as a 
rule” This can mean nothing else but that the bishops 
should not make it a rule to reserve to themselves cases 
already reserved to them by law, or reserved to no one 
by law. 

This is the verbal interpretation of can. 898. Is there 
any solid reason to depart from it? We cannot see any 
such reason. For if it is objected that it is repugnant 
that bishops should reserve to themselves cases from 
which they can absolve only by delegated power, the 
answer is: Concerning the cases specialissimo or speciali 
modo, reserved to the Apostolic See there might be 
some shadow of a reason. But as to cases simply reserved 
to the Apostolic See, or reserved to the bishops by law, 
or reserved to no one, there cannot be any reason. For 
in these cases they absolve propria auctoritate, granted by 
law or general faculties. Besides, if the Bishop wishes to 
impress the faithful with the seriousness of a crime, he 
may bind himself, or rather shift the odium of the reserva¬ 
tion to the Apostolic See. Lastly, it matters little whether 
he absolves potestate propria or delegatd. It must, how¬ 
ever, be observed that the Code strictly enjoins Ordinaries 
not to make cases reserved to the Apostolic See episcopal 
cases. This is deducible from the first proposition. But 
it must be added that invalidity of such reservations can¬ 
not be read into the text. The term “abstineant” cannot 
be stretched so far, nor can the “nequit ferre” of can. 


246 POWERS CONCERNING THINGS 


2247, § 1 be simply taken as involving invalidity. For 
the “ncquit” alone does not warrant such interpretation. 
If the legislator had intended invalidity, he would have 
said so, as, for instance, in can. 782, § 3: “valide uti 
nequcunt” 

Cases reserved for reasons of necessity or utility should 
he brought to the knowledge of their subjects by the 
Ordinaries, who should not grant indiscriminate faculties 
to absolve from them. 

The Canonicus Poenitentiarius has by law the faculty 
of absolving from the cases reserved to the bishop. This 
canon penitentiary may belong to a cathedral or to a colle¬ 
giate church, both of whom enjoy the power of absolving 
by virtue of their office and of law. Besides, the legislator 
wishes that the faculty of absolving from these reserved 
cases should be habitually delegated to the rural deans , 
who should also be given the power of subdelegating totics 
quoties confessors of their districts, especially in parishes 
distant from the episcopal see, whenever these confessors 
have recourse to the deans for individual and urgent cases. 

Indulgences 

The Pope may grant indulgences for the whole Church, 
without any limit as to kind, place, and persons. 

Archbishops and bishops may grant indulgences in their 
respective provinces and dioceses, the former of 100 days, 
the latter of fifty days. These indulgences are called local 
because they apply only to the territory over which the 
respective prelates have jurisdiction. 

Cardinals may grant a two hundred days’ indulgence, 
toties quoties, in any place (titular church or institution) 
and to any person under their jurisdiction and protection. 
Their power also is an ordinary one by law. 


INDULGENCES 


247 


Apostolic delegates who have received faculties from 
the Pope for granting indulgences, should abstain from 
attaching such to devotional objects or acts of piety which 
have already been thus enriched by a bishop within his 
territory. 

Bishops and archbishops may attach the indulgence 
which the law empowers them to grant on the occasion 
of solemn functions, to images or statues, provided the 
material is such as prescribed by the Church. These in¬ 
dulgences of 50 or 100 days may be gained by the faithful 
who recite the prayers prescribed before said statues or 
images. But these prelates are not allowed to grant more 
than 50 or 100 days. 

Prelates of inferior rank to the Pope (1) cannot im¬ 
part to others the faculty of granting indulgences, un¬ 
less they have an express indult to that effect from the 
Apostolic See; (2) cannot grant indulgences applicable 
to the poor souls; (3) cannot attach additional indul¬ 
gences to an object, or an act of piety, or a confraternity 
which have already been indulgenced by the Holy See or 
some other prelate, unless new conditions are prescribed. 

Every bishop may impart the papal blessing in his own 
diocese with a plenary indulgence, according to the form¬ 
ulary prescribed in the Pontificate Romanum twice a 
year: once on the feast of Easter, and once on another 
day, which the bishops themselves may designate, even 
though they should only assist at the solemn Mass. The 
same may be imparted, but only on one of the more 
solemn feasts of the year, by abbots or prelates nullius, by 
vicars-Apostolic and prefects-Apostolic, even though they 
are not endowed with the episcopal dignity. 

Regulars who have the privilege of imparting the papal 
blessing, are not only obliged to use the formula pre¬ 
scribed, but may exercise that privilege only in their own 


248 POWERS CONCERNING THINGS 


churches or in the churches of moniales and tertiaries 
lawfully aggregated to their order, and are not allowed to 
give the papal blessing on the same day and in the same 
place on which the bishop imparts it. 

Bishops, abbots or prelates nullius, Apostolic vicars 
and prefects, and the major superiors of exempt clerical 
religious may designate and declare one altar daily priv¬ 
ileged forever in their cathedral, abbatial, collegiate, con¬ 
ventual, parochial, and qua si-parochial churches, pro¬ 
vided there be no privileged altar in said churches. 
In public or semi-public oratories, unless they are united 
to a parish church or serve as its subsidiaries, no privi¬ 
leged altar may be assigned by the prelates mentioned. 

Indulgences not yet published at Rome, may not be 
promulgated without the consent of the local Ordinary. 
This law is binding also on regulars. 

In publishing books, pamphlets, etc., which contain in¬ 
dulgences for various prayers and pious works, can. 1388 
must be observed. 

Those who have obtained from the Sovereign Pontiff 
indulgences destined for all the faithful are obliged under 
penalty of nullification of the favor granted, to send an 
authentic copy of the same to the Sacred Penitentiary. 

New indulgences are those which have not yet been 
promulgated at Rome, and are therefore not registered in 
the office of the S. Congregation of Indulgences. Since 
the establishment of the official Acta Apostolicae Sedis 
(1909) it is easy to know what indulgences are authenti¬ 
cally promulgated. 

The following remarks concerning the publishing of 
books, pamphlets, or leaflets, or summaries of indulgences, 
may prove useful. The Code refers to can. 1388, which 
requires the permission of the local Ordinary, according to 
the well-known Constitution of Leo XIII, (( Ofdciorum ac 


EXTREME UNCTION 


249 


munerum ” Jan. 25, 1897, n. 17. But § 2 of can. 1388 
also requires the express permission of the Holy See for 
the publication, in any language, of an authentic collection 
of prayers or good works to which the Apostolic See has 
attached indulgences, of a list of Apostolic indulgences, 
and of a summary of indulgences which have been previ¬ 
ously collected but never approved, or are for the first time 
collected. Hence every new collection or new list ( elen- 
chus ) or summary of indulgences which have not as yet 
been approved by the S. C. Indulg., needs the express per¬ 
mission of the Holy See and of the Ordinary. If an 
indulgence, or a list or summary or collection of indul¬ 
gences which have been approved by the S. Congregation, 
or are taken from an Apostolic brief or rescript, is to be 
printed or published, the Ordinary may give permission to 
do so without submitting the same to the S. Congregation, 
unless a special prohibition has been issued. Religious 
superiors may have a summary of the indulgences granted 
to confraternities established by their institute printed and 
circulated with the sole approval or visum of the Ordinary. 

Unless the tenor of the grant sounds differently, indul¬ 
gences granted by the bishop may be gained by his sub¬ 
jects also when outside their own diocese. Peregrini, 
vagi, and all who live in the territory may gain the indul¬ 
gences granted for that territory. This, of course, is to 
be understood of indulgences that are not merely local; 
for local indulgences cannot be gained outside the place 
to which they are attached. 

E. Extreme Unction 

The ordinary minister of this Sacrament is the pastor, 
but the local Ordinary may give permission to another 
priest to administer it. 


250 


POWERS CONCERNING THINGS 


The olive oil to be used in the administration of Ex¬ 
treme Unction must be blessed for that purpose by the 
bishop or by a priest who has obtained the necessary fac¬ 
ulty from the Apostolic See. 

F. Holy Orders 

i. The Minister. In the following canons the term 
higher or sacred orders signifies the priesthood, the dia- 
conate, and the sub-diaconate; the term minor orders sig¬ 
nifies the offices of acolyte, exorcist, lector and door¬ 
keeper. 

The terms tt ordinarc, ordo, ordinatio, sacra ordinatio” 
comprise not only the orders mentioned in the preceding 
canon, but also the episcopate and the first tonsure, unless 
the nature of the thing itself or the context implies a 
different meaning. 

The ordinary minister of sacred ordination is every 
(validly) consecrated bishop, even though he be a schis¬ 
matic or heretic. 

No one ordained by the Roman Pontiff may lawfully be 
promoted to a higher order without an Apostolic faculty. 
This rule, however, holds only if the Pope in person, or 
another prelate by special command of the Pontiff, or¬ 
dains a clergyman. Consequently, one ordained in Rome 
by the Cardinal Vicar does not enjoy this distinction. 
On the other hand, it does not matter what order the 
Pope has conferred, for the text says: “Ordinatum a 
Romano Pontifice ,” and this term includes tonsure, ac¬ 
cording to can. 950. The episcopate also is comprised 
therein, but this is mentioned especially in can. 953. 

Episcopal consecration is reserved to the Roman Pon¬ 
tiff, and no bishop is allowed to consecrate any one un¬ 
less he is certain of the papal mandate. The consecrator 


HOLY ORDERS 


251 


shall be assisted by two other bishops, unless an Apos¬ 
tolic dispensation has been granted from this rule. This 
law does not affect the validity of a consecration, but 
it is a grievous obligation to employ two co-consecrating 
bishops. Sometimes the Roman Court grants a dis¬ 
pensation permitting the employment of two dignitaries 
of the cathedral chapter, or simply two dignitaries, as as¬ 
sistants. Thus Leo XIII permitted the bishops of Latin 
America to employ two dignitaries whenever two bishops 
were not readily available. 

2. Episcopus Proprius. As every one should be or¬ 
dained by his own bishop, or at least with the latter’s 
dimissorial letters, so the episcopus proprius, unless pre¬ 
vented by a just cause, should himself ordain his subjects. 
However, no bishop of the Latin rite may lawfully 
ordain a subject of an Oriental rite without an Apostolic 
indult. 

The bishop competent to ordain secular priests is the 
one in whose diocese the ordinand (1) was born and 
has his domicile, or (2) has his domicile, although he 
was not born there. In the latter case he must make oath 
as to his intention of remaining permanently in the dio¬ 
cese. Exceptions will be explained further down. 

This oath is not required in three cases: (a) when 
the cleric to be ordained has already been incardinated 
in the diocese by the first tonsure; (b) when he is to be 
ordained ad titulum servitii ecclesiae ; (c) when he is a 
religious with simple perpetual vows. The reason for a 
lies in the fact that incardination must be perpetual and 
absolute, and given with the required testimonials (can. 

95 6 )- 

Apostolic Vicars and Prefects as well as abbots and 
prelates nullius, if endowed with the episcopal character, 


252 


POWERS CONCERNING THINGS 


are equal to diocesan bishops in matters of ordination. 
If they do not possess the episcopal character, they are 
nevertheless entitled to confer, within the boundaries of 
their district and whilst their office lasts, tonsure and minor 
orders on their own secular subjects, according to can. 956, 
and also on others who are provided with dimissorial 
letters as required by law. If they overstep the limits 
here drawn, any ordination performed by them is invalid 
(can. 957). 

3. Dimissorial and Testimonial Letters. Dimissorial 
letters, from the Latin word dimitt ere aliquem ad alium, 
are letters given by the episcopus proprius to another 
bishop informing him that he may lawfully ordain a can¬ 
didate of the former’s diocese. Testimonial letters 
certify the fact that the ordinandus possesses all the 
qualities and requisites prescribed by law. 

The following may, as long as they retain jurisdiction 
in their respective territory, grant litterae dimissoriae to 
their secular subjects: 

(1) The episcopus proprius, even though not yet con¬ 
secrated, after having taken lawful possession of his 
diocese, i. e., as soon as he himself or his proxy has ex¬ 
hibited the Apostolic letters of appointment to the diocesan 
chapter, or the diocesan consultors in corpora, in the 
presence of the secretary of the chapter or the diocesan 
chancellor. 

(2) The vicar-general, but only by special command of, 
or commission from, the bishop. This command or com¬ 
mission may be given orally or in writing, either for one 
case or for several cases, during the bishop’s absence, for 
instance, or sickness. 

(3) The vicar-capitular (our administrator) with the 
consent (not merely advice) of the chapter (or diocesan 
consultors) after the vacancy of the episcopal see has 


HOLY ORDERS 


253 


lasted one year. Within the first year of vacancy the 
vicar-capitular may grant dimissorial letters only to arctati, 
i. e., such as have already received, or will receive within 
that year, an ecclesiastical benefice (for instance, a canon- 
icate) which requires ordination. Arctati are also those 
who have received or are about to receive an office which, 
on account of the needs of the diocese, must be filled im¬ 
mediately. This may occur even now, especially after the 
late world war, in countries where there is a great 
want of priests or chaplains. If the government— 
provided this right has been granted to it by the Holy 
See—has appointed a chaplain or nominated a pastor who 
is not yet a priest, the vicar-capitular may give him the 
dimissoriae. The same is true if the deceased bishop has 
appointed one to an office requiring the priesthood. 

(4) Vicars Apostolic, prefects Apostolic, and ab¬ 
bots or prelates nullius, even though they are not conse¬ 
crated bishops, may now also grant dimissorial letters for 
sacred orders. This is but the logical consequence of 
can. 957. Formerly prelates nullius could not grant dimis¬ 
sorial letters even for tonsure and minor orders, this 
right being reserved to the episcopus vicinior. 

The vicar-capitular shall not grant dimissorial letters to 
such as were rejected by the deceased bishop. This enact¬ 
ment is similar to that of can. 44 concerning rescripts. 
The object is to protect the authority of the bishop and the 
unity of government, and to keep undesirable candi¬ 
dates out of the sanctuary. 

Whoever is entitled to grant dimissorial letters for 
receiving orders may confer those orders himself, pro¬ 
vided he possesses the necessary potestas ordinis. 

Can. 962 permits every bishop (in communion with the 
Holy See), upon having received the lawful dimissorials, 
to ordain a candidate not subject to his jurisdiction, pro- 


254 


POWERS CONCERNING THINGS 


vided he has no reason to doubt the genuineness of the 
letters, and provided also he observes the ruling of can. 
944, § 3, concerning additional testimonials. Authenticity 
is beyond doubt if the signature and seal of the issuing 
bishop are attached to the documents, though forgery is 
never absolutely excluded. 

Can. 963 rules that the dimissorial letters may be limited 
or revoked either by the grantor himself or by his suc¬ 
cessor, but do not expire, even if the grantor should lose 
his power. 

A limitation may be made concerning the bishop, who 
may be personally designated in the letter, or concerning 
the time, which may be restricted to three or four months. 
There may also be limitations regarding examination (cfr. 
can. 977.) Thus the letter may be worded: “If he is 
found fit after examination.” If this is a real condition, 
clearly expressed as such in the letter, the dimissorial 
would become null if the candidate failed to pass the ex¬ 
amination. 

Revocation must be duly intimated either to the candi¬ 
date to whom the letters were given, or to the bishop to 
whom they were addressed. 

Concerning the ordination of religions the Code rules 
as follows: 

(1) Governing abbots, provided they are priests and 
duly blessed, may confer tonsure and minor orders on 
their own subjects. 

(2) Superiors of exempt religious institutes, whether 
regulars or otherwise exempt, must give dimissorial let¬ 
ters to their subjects, in order that a bishop may licitly 
ordain them. Such dimissorial letters must be given for 
tonsure and minor orders as well as for major orders, for 
n. 2 of our canon does not distinguish between the differ¬ 
ent orders. Therefore the religious exempt superiors, not 


HOLY ORDERS 


255 

the local Ordinary, grant dimissorial letters for all orders, 
lower or higher. 

(3) All religious superiors of orders as well as con¬ 
gregations, the Constitutions of which prescribe perpetual 
vows, may grant dimissorial letters to their temporarily 
professed members, but only for tonsure and minor 
orders. 

(4) Members of religious institutes which are not 
exempt need litterae dimissoriae from their own bishop 
if they wish to be promoted to major orders, beginning 
with subdeaconship. Hence with regard to sacred orders 
these members fall under can. 956, which determines the 
competency of the bishop. Every indult to the contrary 
must now be regarded as void. 

(5) Novice's of religious orders as well as congrega¬ 
tions must observe the law binding seculars (can. 956). 

(6) Members of religious societies must follow the 
same rule (can. 956). 

It may be asked whether a governing abbot may ad¬ 
dress dimissorial letters to another abbot, who is entitled 
to confer tonsure and minor orders on his own subjects; 
for instance, to the Abbot President or the Abbot Primate. 
This was possible and actually done before the pro¬ 
mulgation of the Code. But the practice can no longer 
be sustained, since the legislator emphasizes the invalidity 
of ordination performed on a non-subject. Notice well 
the subject is one vi professionis, not by a transient trans¬ 
fer of jurisdiction. 

The bishop to whom the religious superior must direct 
the dimissorial letters, is the bishop in whose diocese the 
religious house of which the ordinand is a member, is 
situated. 

Only in the following cases may the religious superior 
direct the litterae dimissoriae to another than the diocesan 


256 POWERS CONCERNING THINGS 


bishop : (i) If the diocesan bishop has given permis¬ 

sion; or (2) if he is of another rite; or (3) if he is ab¬ 
sent ; or (4) if he does not hold ordinations at the time 
stated in can. 1006, § 2; or (5) if the diocese is vacant 
or ruled by one who lacks the episcopal character. How¬ 
ever, in every such case the facts must be attested to the 
ordaining bishop by an authentic document of the court 
of the bishop competent for ordination. 

Testimonial letters must be issued and obtained before 
dimissorial letters can lawfully be granted. If new testi¬ 
monials are necessary after the dimissorial letters have 
been issued by the Ordinary, the other bishop shall not 
ordain the candidate before he has received them. If 
the candidate has lived in the diocese of the ordaining 
bishop long enough to contract a canonical impediment, 
the ordaining bishop shall himself gather the necessary 
information. New testimonial letters are required if a 
candidate has lived in the same territory for six or three 
months after the first testimonials were issued and or¬ 
dination has not yet taken place; for six or even three 
months suffice to contract a canonical impediment. 

Seculars as well as those religious who in matters of 
ordination are governed by the rules laid down for secu¬ 
lars, must produce: 

i°. A certificate of the order they have received last, 
or if tonsure is to be received, their baptismal and con¬ 
firmation record; 

2°. A certificate showing that they have completed the 
studies required for the several orders according to can. 
976; 

3 0 . Testimonials from the rector of the seminary , or 
from the priest to whose care the candidate had been en¬ 
trusted during his stay outside the seminary, as to his 
good character; 


HOLY ORDERS 


257 


4°. Testimonials from the Ordinary of the diocese in 
which the candidate has lived sufficiently long to contract 
a canonical impediment; 

5°. Testimonials from the higher superior, if the candi¬ 
date belongs to a religious community. 

Can. 994 determines the time which may be considered 
sufficient for one to contract a canonical impediment. It 
is, as a rule, six months after the age of puberty, and three 
months for those engaged in military service. However, 
the bishop may, if he thinks it prudent, demand testi¬ 
monials for a shorter time, and also for the time before 
the age of puberty. 

If the Ordinary himself, or other responsible men 
of his surroundings or diocese, do not know the candidate 
sufficiently well to be able to testify to his freedom 
from canonical impediments for the time spent in the 
diocese, the Ordinary shall demand a supplementary oath 
from the candidate. This same oath shall also be de¬ 
manded if the candidate has lived in so many dioceses 
that it is impossible, or extremely difficult, to obtain all 
the testimonials required. 

If, after the testimonials have been obtained and before 
the candidate is ordained, he again lives in the same 
territory for a space of time which may suffice for con¬ 
tracting a canonical impediment, new testimonials from 
the local Ordinary are required. 

Can. 995 regulates the matter with regard to religious 
superiors. These, when given lit ter ae dimissoriae, must 
testify that the candidate has made religious profession, 
and that he is a member of the religious house subject 
to the resp. superior, has completed the required studies 
and complied with the other conditions demanded by law. 
Upon having received the litterae dimissoriae thus de¬ 
scribed, the bishop needs no other testimonials. 


258 POWERS CONCERNING THINGS 


The contents of the testimonials for the secular clergy 
refer to studies, moral character, and freedom from 
canonical impediments. 

Preparation and Requisites 

In order to receive orders licitly, the candidate must, 
according to the judgment of the Ordinary, be endowed 
with the qualities prescribed by law and free from any 
irregularity or canonical impediment. 

The bishop should not ordain seculars, unless he knows 
that they are needed or will prove useful. However, he 
is allowed to ordain any one of his subjects who may be 
destined for the future service of another diocese, sup¬ 
posing, of course, excardination and incardination. 

A bishop or higher religious superior may, for any 
canonical (even though secret) reason, and without a for¬ 
mal trial, forbid his subjects to receive orders; but a sub¬ 
ject thus interdicted retains the right of recourse to the 
Holy See, or, in the case of religious who have been en¬ 
joined by their provincial, to the superior general. 

Care should be taken that those who aspire to sacred 
orders be received into the seminary at an early age. All 
candidates for the sacred ministry are obliged to live in a 
seminary at least throughout the entire course of their 
theological studies, unless the Ordinary, for grave rea¬ 
sons and upon due deliberation, dispenses from this rule 
in individual cases. 

Candidates for orders who lawfully dwell outside the 
seminary should be commended to a pious and worthy 
priest, who should watch over them and train them in 
piety. 

Tonsure and inferior orders should be given only to such 
as have the intention to ascend to the priesthood and give 


HOLY ORDERS 


2 59 


reason to hope that they will become worthy priests. 
If, however, one who has been ordained (say to sub- 
deaconship) refuses to receive higher orders, he cannot be 
compelled by the bishop to receive such higher orders, 
nor be forbidden the exercise of the orders he has re¬ 
ceived, unless a canonical impediment or some other grave 
cause, in the judgment of the bishop, should intervene. 

The bishop shall not confer sacred orders on any 
one unless he has positive proof, amounting to moral cer¬ 
tainty, of the candidate’s canonical fitness; otherwise he 
not only commits a grievous sin, but exposes himself to 
the danger of sharing in the guilt of another. 

That candidates may be licitly ordained the following 
conditions are required : 

i°. They must have received the Sacrament of Con¬ 
firmation ; 

2°. Their moral conduct must be conformable to the 
order they wish to receive; 

3°. They must have attained the canonical age; no one 
may be ordained subdeacon before he has completed his 
twenty-first year; deaconship cannot be received before 
the twenty-second year is completed, and the priesthood 
cannot be received before the twenty-fourth year is com¬ 
pleted. For tonsure and minor orders no age is pre¬ 
scribed, but the following canon establishes a certain limit. 

4. 0 They must have the necessary knowledge; hence 
neither seculars nor religious may receive the tonsure 
before they have entered upon the study of theology. 
Subdeaconship may be conferred only after the end of 
the third year of the theological course, deaconship after 
the beginning of the fourth year, and the priesthood in the 
second term of the fourth year. This law, of course, is 
not binding on religious or secular institutes which have 
obtained a favor from the Apostolic See after the pro- 


26 o 


POWERS CONCERNING THINGS 


mulgation of the Code. Thus the Benedictines obtained 
a privilege from Benedict XV, in 1921, for a special 
reason. Whether our bishops have a general indult 
to ordain candidates before they have completed the 
prescribed studies, we could not ascertain, although we 
endeavored to obtain authentic information. The theo¬ 
logical course must be taken, not privately, but in a 
school conducted according to can. 1365. Of the philosoph¬ 
ical course the text makes no mention, hence this may 
be taken privately. 

5 0 . They must have received inferior orders, and hence 
no ordination is allowed per saltum, and, 

6°. The interstices must be duly observed. How¬ 
ever, it is left to the bishop to determine the intervals 
between the tonsure and the ostiariate , and between the 
several minor orders. The interval between the acoly- 
thate and subdeaconship must last one year; the interval 
between the subdiaconate and the diaconate, as also the 
interval between deaconship and the priesthood, must last 
at least three months, unless the bishop deems it necessary 
or useful for his diocese to shorten these intervals. Any 
plausible reason is sufficient. It may be added that it is 
the ordaining bishop who grants dispensation also in case 
of religious who may enjoy the privilege of being ordained 
without regard to the interstices. The bishop, in ordain¬ 
ing such as are not his subjects, may also dispense from 
the intervals. Minor Orders and subdeaconship, or two 
sacred orders, may never be conferred on the same day 
without the express permission of the Roman Pontiff. 
Every contrary custom is reprobated by the Code. 
Neither is it allowed to confer tonsure together with one 
of the minor orders, or all the minor orders at the same 
time. 

7 0 . They must be in possession of a canonical title , if 


HOLY ORDERS 


261 


they wish to receive orders. For the secular clergy the 
canonical title is that of an ecclesiastical benefice, or, where 
this is wanting, that of a patrimony or pension. This title 
must be secure for the life-time of the ordinand, and en¬ 
tirely sufficient to support him properly, according to the 
regulations established by the Ordinaries to meet the 
needs and circumstances of place and time. If a clergy¬ 
man in holy orders loses the title to which he was ordained, 
he must procure another, unless in the judgment of the 
bishop, he is well provided for in some other way. If a 
bishop has ordained a cleric without a canonical title, with 
the mutual agreement that the ordinand should not de¬ 
mand any support of him, the stipulation is void. Such a 
practice would savor of simony, and the text from which 
the Code took this law, actually belongs to the title on 
simony. The penalty is suspension from conferring or¬ 
ders for one year and is reserved to the Holy See. 

If none of the three titles, benefice, patrimony, pension, 
is available, the title of service of the diocese, or, in 
the provinces subject to the S. C. Propaganda, the titnlus 
missionis may be substituted. However, in both cases the 
ordinand must make oath that he will permanently serve 
the diocese or mission under the jurisdiction of the re¬ 
spective Ordinary. The Ordinary owes to the one pro¬ 
moted to the title of service or mission either a benefice or 
an office or a subsidy affording him sufficient support. 

The title paupertatis is strictly limited to regulars, i. e., 
members of religious orders with solemn vows, and to 
solemn profession. Hence clerics belonging to orders 
whose members are only simply or temporarily professed, 
cannot be ordained on the title of religious profession. 
This applies also to regulars working on missions that 
are under the jurisdiction of the Propaganda. For re¬ 
ligious of simple perpetual vows, the title is that of mensae 


262 POWERS CONCERNING THINGS 


communis, or congregations, or a similar one, according 
to their own Constitutions. All other religious fall under 
the common law of the Church, so far as the title of ordi¬ 
nation is concerned. Hence 

i°. Religious with purely temporary vows cannot be 
ordained subdeacons unless they have a canonical title, 
or one acknowledged by law, as prescribed for seculars; 

2°. Novices are bound by the same law as the secular 
clergy; 

3°. Members of religious societies without vows must 
obey the law laid down for the secular clergy, unless they 
have a special privilege. 

Irregularities and Canonical Impediments 

The Code treats of these impediments, not as penalties, 
but as mere obstacles to the receiving or exercising of 
orders, and distinguishes between irregularities arising 
from defect and crime, and impediments proper. 

Among the irregularities cx defectu it reckons: (i) 

illegitimacy, (2) bodily defects, (3) mental deformities, 
(4) bigamy in the canonical sense, (5) infamy by law; 
(6) the fact of having pronounced a sentence of death, 
and (7) having concurred in the execution of capital 
punishment. 

Among the irregularities ex delicto it enumerates: (1) 
apostasy, (2) anabaptism, (3) attempted marriage, (4) 
homicide, (5) suicide and mutilation, (6) the practice of 
medicine or surgery by clerics, (7) abuse of an order. 

Canonical impediments are: (1) heresy, (2) the mar¬ 
riage bond, (3) temporal administration, (4) slavery 
proper, (5) military service, (6) weakness in faith, (7) 
infamy in fact. 

Ignorance of irregularities does not excuse from incur- 


HOLY ORDERS 


263 


ring them. However, the Code grants to Ordinaries 
power to dispense from impediments which arise from 
occult crimes, except homicide. 

Examination Before Ordination 

The Code, in accordance with old custom, enacts that 
seculars as well as religious must, before ordination, be 
carefully examined concerning the order they are going to 
receive. This information can best be obtained from the 
Pontificate Romanian, which should therefore be studied, 
together with the practical exercises. Those to be pro¬ 
moted to higher orders shall also undergo an examination 
in the one or other theological discipline, which they have 
studied in school. The bishop has the right to determine 
the method, the examiners and the subject-matter of these 
examinations. The prelate before whom the secular as 
well as religious clergy have to pass this examination (can. 
997, i°) is the competent Ordinary, who either himself 
ordains them or grants them dimissorials. The competent 
ordinary may, for a just reason, entrust the ordaining 
bishop with this examination, provided the latter is willing. 

Although the names of the candidates for ordination 
should be publicly announced in their respective churches 
—except for religious—the bishop may, for a just reason, 
dispense with this announcement; but he should not 
hesitate to obtain private information if he thinks it neces¬ 
sary. 


Rite, Time, and Place 

The Mass of ordination or episcopal consecration must 
always be celebrated by the minister of ordination or con¬ 
secration. 


264 POWERS CONCERNING THINGS 

Episcopal consecration must be conferred during the 
solemnity of the Mass on a Sunday or the feast of an 
Apostle in the strict sense of the term. Higher Orders 
should be conferred during holy Mass on the four Ember 
Saturdays, on the Saturday “Sitientes,” before Passion 
Sunday, and on Holy Saturday. However, the bishop 
may ordain to higher orders also on any Sunday or 
holyday of obligation if there be a grave reason for so 
doing. 

Tonsure may be given on any day and at any hour 
of the day, in the forenoon or in the afternoon. Minor 
Orders may be conferred on Sundays or on weekdays 
which have a feast celebrated or marked in the diocesan 
calendar as duplex. 

The custom of ordaining outside the times prescribed in 
the preceding sections is reprobated. These times must 
be observed also when a bishop of the Latin rite, in virtue 
of an Apostolic indult, ordains a clergyman of an Oriental 
rite, and conversely. The reason for this latter enact¬ 
ment is the contrary practice of the Oriental bishops, who 
have never received the decrees and decretals of the 
Western Church and still ordain on any day of the year. 

A bishop is not allowed, without the permission of the 
local Ordinary, to confer any orders which require the 
exercise of pontificals outside his own diocese. 

General ordinations should be held publicly in the cathe¬ 
dral church, and the canons of that church should be called 
and be present thereat. If these ordinations are held 
elsewhere in the diocese, a more prominent church should 
be selected and the local clergy should be present. 

The bishop, for a just reason, may hold particular or¬ 
dinations in some other church, or in the chapel of the 
episcopal residence, or in the oratory of a seminary or con¬ 
vent. 


MATRIMONY 265 

Tonsure and minor orders may also be conferred in 
private oratories. 


Recording of Ordinations 

After ordination the names of those who have been or¬ 
dained, as wdl as that of the ordaining minister, together 
with the place and day of the ordination should be entered 
in a special book, which must be carefully kept in the 
court of the place of ordination. Besides, all documents 
relating to individual ordinations should be carefully 
preserved. 

Each one who has been ordained should be given an 
authentic attestation of the order received. In case the 
candidates are ordained by a strange bishop, with dimis- 
sorials from their own ordinary, they must show the certi¬ 
ficate to their own bishop, in order that it may be regis¬ 
tered in the special book to be kept in the archives. 

In the case of the secular clergy the local Ordinary, 
and in case of religious ordained with his dimissorials, 
the religious superior must inform the pastor of the 
church in which the ordinand was baptized of his ordina¬ 
tion to subdeaconship, in order that said pastor may enter 
the fact in the baptismal register. 

The religious superior here mentioned is a superior of 
exempt religious, because none other can give dimissorials 
for sacred orders. 

G. The Sacrament of Matrimony 

Christ has raised to the dignity of a sacrament the mar¬ 
riage contract between two baptized persons. This con¬ 
tract enjoys the favor of the law in this sense that, if a 
doubt arises as to validity, it is simply presumed ( prae - 
sumptio iuris simplex not iuris et de iure). 


266 POWERS CONCERNING THINGS 


i. Species of Marriage 

A valid marriage contracted between baptized per¬ 
sons, is called ratified ( ratum) so long as it has not been 
consummated by conjugal intercourse; ratified and con¬ 
summated, if perfected by the conjugal act to which matri¬ 
mony is by nature directed and by which the partners be¬ 
come one flesh. 

If the parties have lived together after the celebration 
of marriage, consummation is presumed until the con¬ 
trary is proved. This proof must be obtained by inspec¬ 
tion on the part of two physicians or competent nurses or 
midwives, unless circumstances render such inspection un¬ 
necessary, as when, for instance, it could be established by 
trustworthy witnesses that one of the parties left the 
other immediately after the matrimonial celebration; or if 
the woman had been a prostitute. 

A marriage validly contracted between unbaptized per¬ 
sons is called legitimate, but not sacramental. Thus a 
marriage between two Jews or two Gentiles, for inst. 
Indians, is really a matrimonium legitimum, but is never 
termed ratum —unless the State has affixed an invali¬ 
dating clause to the non-observance of some formalities. 
And we hold that the civil authority has a right to set up 
invalidating impediments concerning marriages of non- 
baptized citizens. The reason is that the essence of the 
marital contract consists in the mutual consent properly 
manifested (can. 1081), and, unless the State has attached 
an invalidating clause to the nonfulfilment of the pre¬ 
scribed formality, all that is required for a marriage- 
contract is mutual consent sufficiently determined to make 
it a contract. 

An invalid marriage is called feigned ( putativum ) if 


MATRIMONY 267 

at least one party is in good faith, and until both be¬ 
come aware of its validity. 

2. The Law of Marriage 

Marriages of baptized persons are governed by divine 
and canon law, with due regard to civil law concerning 
the purely civil effects. The divine law concerns unity 
and indissolubility,—therefore, the marriage bond. It 
may also be safely said to touch blood relationship in the 
direct line, ascending as well as descending. Further¬ 
more, it affects impotency, because this is intimately con¬ 
nected with the first purpose of matrimony—the pro¬ 
creation of children. Finally, the divine law, as can. 1060 
states, may also interfere with mixed marriages. 

The canon lazv is nothing else but the Code. Directly 
this concerns Catholics only, although indirectly it may 
also affect non-Catholics, who contract marriage with a 
Catholic party. Orientals, if they marry among them¬ 
selves, are not touched by the Code. 

Here are the interpretations given subsequently to the 
promulgation of the Code (19 May, 1918) by the Pontif¬ 
ical Commission 1 : 

The Code is not retroactive with regard to engagements 
or impediments. This must be understood as follows: 
Engagements no longer constitute an impediment to mar¬ 
riage if the marriage is contracted after the 18 May, 1918; 
but action from a breach of promise, as per can. 1017, § 
3, is still allowed. If a marriage was contracted before 
May 18, 1918, with an impediment now abrogated by the 
Code, it did not become valid by the promulgation of the 
Code. This concerns the fourth degree of blood relation¬ 
ship, the third and fourth degree of affinity, and spiritual 

1 Commissio Pontificia, 2-3 June, 1918 ( A . Ap. S., X, 345 f.). 


268 POWERS CONCERNING THINGS 


relationship, which, however, no longer extends to minis¬ 
ter and parents, nor to sponsors and parents, nor to re¬ 
lationship from Confirmation (can. 768). 

A remark concerning can. 1070, disparity of worship. 
If the Code does not legislate for those outside the Cath¬ 
olic Church, a marriage between a baptized Anglican and 
a non-baptized party is now valid. On the other hand, 
according to the authentic interpretation stated above, 
such a marriage contracted before May 18, 1918, does not 
become valid by the promulgation of the Code. 

A claim arising from an engagement is no sufficient 
cause for deferring a marriage, nor is it necessary to 
settle the claim before allowing the marriage. 

3. Bethrothal or Engagement 

A promise of marriage, made either by one party or 
by both, is void in the court of conscience as well as in 
the external forum, unless it is made in 7 vriting and signed 
by the parties themselves and by the parish priest, or the 
diocesan Ordinary, or at least two witnesses. In case 
both parties, or one of them, does not know or is unable to 
write, it is required for the validity of the act that this 
fact be noted in the document itself and another witness 
be added, who, together with the pastor or the Ordinary 
of the diocese, or the other witnesses, shall sign the docu¬ 
ment. From a promise of marriage, though this be 
valid and no just reason excuses, no action is admissible 
to compel the celebration of marriage. However, an ac¬ 
tion to recover damages is permitted. 

4. Instructions and Banns 

It is the business of the diocesan Ordinary to issue 
special regulations to pastors on the instruction of nup- 


INSTRUCTIONS AND BANNS 


269 


turients. This may be done in an appendix to the ‘‘Dio¬ 
cesan Statutes,” unless the Ordinary himself wishes to 
compose or recommend a manual for the purpose. 

The publication of the banns is to be made by the 
parties’ own pastor ( parochus proprius), i. e., the pastor 
in whose parish the parties have their domicile or quasi¬ 
domicile. The diocesan domicile cannot be alleged. If a 
party has lived in another place than the parish of the 
parochus proprius for six months after the age of puberty, 
the pastor shall report the matter to the Ordinary, who 
may prudently order either the banns to be published in that 
place or else proofs or conjectures to be gathered which 
establish the party’s free status. If the pastor suspects 
the existence of an impediment, he should report to the 
Ordinary, even though the party has lived less than six 
months in the other place, and the Ordinary shall not give 
permission to marry until the suspicion has been re¬ 
moved. 

The Ordinary may substitute for said publication the 
public posting of the names of the contracting parties at 
the doors of the parish church or some other church; the 
notice must remain posted for eight days, including two 
holydays of obligation. 

The publication of the banns is to be omitted in mar¬ 
riages contracted with a dispensation from either dis¬ 
parity of cult or mixed religion, unless the Ordinary dis¬ 
creetly permits it, provided no scandal is given, and pro¬ 
vided that the apostolic dispensation has been obtained, 
and no allusion is made to the non-Catholic party’s re¬ 
ligion. 

Scandal might arise among the people because of the 
non-Catholic party’s aversion to the Catholic religion, or 
because of the Catholic’s marrying a non-Catholic, espe¬ 
cially in preponderantly Catholic parishes. 


POWERS CONCERNING THINGS 


The diocesan Ordinary may, according' to his discre¬ 
tion, dispense from the publication of the banns in his 
own diocese or in a strange diocese, provided there is a 
lawful reason. If the parties belong to different dio¬ 
ceses the bishop in whose diocese the marriage is to be 
celebrated, is entitled to dispense; if the marriage takes 
place in neither of the two dioceses, either of the Ordi¬ 
naries may dispense. By Ordinary is understood the 
bishop, the vicar-general, or the vicar-capitular, even with¬ 
out a special commission ( administrator and abbas nul- 
lius). But inferior clergymen, such as deans, pastors, 
or curates have no power to grant a dispensation. How¬ 
ever, in case a marriage would surprise a pastor, as it 
were, and he is aware that it could be maliciously hindered, 
and certain that no impediment exists, he may omit the 
publication, vi declarations, if no time is left for consult¬ 
ing the bishop. This holds especially in danger of death. 

Should a marriage be delayed for six months after the 
banns have been published, the publication must be re¬ 
peated, unless the Ordinary decides otherwise. 

To ascertain the free status of the contracting parties, 
the pastor must, in case of a certain impediment, or of a 
doubtful impediment, consult the Ordinary or report the 
matter to him. He is not allowed to assist at a marriage 
of vagi, unless he has previously referred the case to the 
Ordinary of the diocese, or to a priest delegated by the 
latter, and obtained his permission. Vagi are such as 
have neither a domicile nor a quasi-domicile, and, with 
regard to marriage, have not stayed for thirty days in any 
one place, i. e., parish or diocese. 1 Hence one who has 
roamed about in a diocese for thirty days without settling 
in any parish thereof, cannot strictly be called vagus. 

The pastor shall gravely admonish minors not to marry 

1 See Can. 91. 


MARRIAGE IMPEDIMENTS 


271 


without the knowledge of their parents or against their 
reasonable wishes. If they refuse to obey, he shall assist 
at the marriage only after having consulted the Ordinary 
of the diocese. 


5. Impediments 

An impediment is an obstacle to either a valid or licit 
marriage. Here we deal with canonical impediments. 
This term, “canonical,” may be taken in a wide or in a 
narrow sense. In the wide sense it comprises all ec¬ 
clesiastical impediments, either of divine or human law, 
because the Church is competent to declare or interpret 
the divine law, and, therefore, to state which impediments 
are of divine law. In the narrower sense the term “canon¬ 
ical” includes only those impediments which the Church 
has set up as merely ecclesiastical impediments. This is 
enunciated by the Code in the following words, which 
must be strictly interpreted: “It belongs to the supreme 
authority of the Church to declare authentically when the 
divine law forbids or invalidates a marriage. To the same 
supreme authority belongs the exclusive right to establish, 
for baptized persons, other impediments, prohibitive or 
invalidating, by way of universal or particular law.” 

The Code vindicates to the local Ordinaries the right 
of forbidding a marriage in a particular case. Therefore, 
their power is limited; it extends only to individual 
cases and, besides, cannot be exercised except for a just- 
cause. Such a cause would exist, e. g., if the Ordinary 
would have reason to doubt the free status of one or both 
of the contracting parties, either because no papers were 
received or because papers had been refused by another 
bishop. Another just cause would be a reasonable doubt 
as to the existence of an impediment, or a strong pre- 


272 


POWERS CONCERNING THINGS 


sentiment of future trouble. However, the bishop may 
not forbid a marriage for an indefinite term, but only for 
a time, as long as the reason lasts. Therefore a definite 
term should be set, say two or three months, which, in 
ordinary times, would enable the parties to obtain the 
necessary papers and remove existing difficulties. Lastly, 
the Ordinary’s power extends only to those who actually 
live within his diocese or are his subjects, even if they 
dwell outside the diocese. Therefore all Catholics who 
live in a diocese, no matter for how short a time, must 
abide by the order of the bishop, if he forbids their at¬ 
tempted marriage. The same rule applies to subjects 
who have their domicile or quasi-domicile in the diocese, 
but momentarily live elsewhere, though in such cases 
it will be proper to notify the Ordinary of the other 
diocese. 

Local Ordinaries cannot add an invalidating clause 
(clausula irritans ) to any particular marriage forbidden 
by them. This power belongs exclusively to the Apostolic 
See; therefore a marriage contracted against the prohibi¬ 
tion of the bishop is and remains valid. 

The Roman Pontiff alone can either totally or partially 
abolish impediments established by ecclesiastical law, 
whether prohibitive or diriment. Note the term ccclesias- 
tici iuris, for impediments of natural or divine law, such 
as those of ligamen or impotency, or blood-relationship of 
the first degree, can never be abolished or modified by the 
Pope. But ecclesiastical impediments were established by 
the Church and can be either totally or partially abro¬ 
gated by her. 

The Sovereign Pontiff alone, and no one else, can dis¬ 
pense from matrimonial impediments, unless the power 
has been granted by the common law or by special papal 
indult. 


MARRIAGE IMPEDIMENTS 


273 

Customs tending to introduce a new impediment or to 
abrogate those in force, are expressly reprobated. 

6. Classification of Impediments 

A prohibitive impediment implies a grave prohibition of 
contracting marriage, but does not render it invalid if 
contracted. A diriment impediment both gravely forbids 
marriage and prevents it from being contracted validly. 
Even when the impediment exists only on one side, it 
renders marriage illicit or invalid. 

An impediment is considered public when it can be 
proved in the external forum; otherwise it is occult. If, 
besides the party or parties concerned, two trustworthy 
persons know of the impediment, and have means to 
prove it, it can no longer be styled occult. One authentic 
document (e. g., a baptismal record) is sufficient to prove 
the existence of an impediment. 

Impediments are, furthermore, of a higher or lower 
degree: 


Major 

1. Age. 

2. Impotence (iuris nat .). 

3. Ligamcn (iuris nat.). 

4. Disparity of Cult and 
Mixed Religion. 

5. Sacred Orders. 

6. Solemn Profession. 

7. Rape. 

8. Crime, with adultery 
and uno machinantc, or 
without adultery, but 
utroque machinantc. 


Minor 


1. Crime with adultery 
and promise of mar¬ 
riage. 

2. Consanguinity in the 


POWERS CONCERNING THINGS 


Major 

9. Consanguinity, whole 
direct line and first and 
second degree of the 
collateral line (iuris nat. 
i° gr. lin. rectac). 

10. Affinity in the whole di¬ 
rect line and first de¬ 
gree of the collateral 
line. 

11. Public honesty in the 
first degree. 

12. Legal Adoption. 


Minor 

third degree of the col¬ 
lateral line. 

3. Affinity in the second 
degree of the collateral 
line. 

4. Public honesty in the 
second degree. 

5. Spiritual relationship. 


We put the impediment of mixed religion, though only 
prohibitive, among the major impediments, as the Code 
seems to justify this classification (see can. 1071). As to 
the impedient impediments, a classification of them is 
superfluous. 


7. Dispensation from Impediments by Law 

The Code (can. 1043) grants the right of dispensing 
to local Ordinaries under the following clauses and re¬ 
servations : 

a) When one of the parties concerned is in danger of 
death, for the relief of conscience, and, if necessary, for 
the legitimation of children; 

b) This dispensation may be applied, under the afore¬ 
said circumstances, to all impediments of ecclesiastical 
law, diriment and impedient, public and occult, simple 
and multiplex, with the exception of the impediments of 
the priesthood and affinity in the direct line arising from 
a consummated marriage. It is, furthermore, applicable 


DISPENSATION FROM IMPEDIMENTS 275 


to clandestine, namely, marriages contracted without ob¬ 
serving the form prescribed by the Church. 

c) The conditions are that scandal be removed in each 
and every case of these dispensable impediments; this 
clause does not, however, affect the validity of the dis¬ 
pensation. 

d) Concerning disparity of worship and mixed religion, 
the condition is and must be complied with, at least in the 
form of an oral promise, that the two precautions be 
guaranteed; if the parties refuse to comply with this last- 
named demand—which involves a divine law (can. 1060) 
—the Ordinary cannot validly or licitly apply the dis¬ 
pensation. 

e) The local Ordinary can grant this dispensation to 
all his subjects, wherever they may be, and to all other 
persons actually residing in his territory. 

Under the conditions laid down in can. 1043, if the im¬ 
pediment is not discovered until everything is ready for 
the marriage, and the ceremony cannot be delayed without 
the probable danger of a grave inconvenience, until a 
dispensation is obtained from the Holy See, Ordinaries 
can dispense from all the impediments mentioned in this 
canon. 

This faculty holds good for the revalidation of a mar¬ 
riage already contracted, if delay be dangerous and there 
is no time for recourse to the Holy See. 

In the same circumstances the pastor, priest and con¬ 
fessor mentioned in can. 1044 enjoy the same faculty, 
but they are allowed to apply it only in occult cases, which 
admit of no recourse to the local Ordinary, or if access to 
the Ordinary would entail danger of violating the secret. 

This is the well-known casus perplexus of canonists. 

The pastor or priest—the confessor is exempted—must 
immediately inform the Ordinary of every dispensation 


276 POWERS CONCERNING THINGS 


granted in foro externo and record the same in the matri¬ 
monial register. Of course, the validity of a dispensation 
does not depend on this record. 

S. The Ordinaries’ Powers of Dispensing by faculties. 

The Code (can. 1040) states the rule that local Ordi¬ 
naries cannot dispense from impediments—as they cannot 
set up impediments—unless this power is given them 
either by law or by a special papal indult. 

1. The law grants this power: (1) in the cases men¬ 
tioned in can. 81, provided the conditions mentioned there 
are verified; (2) where there is danger of death (can. 
1043), as just explained, and the casus per plexus arises 
(can. 1045). Besides these cases there is nothing else 
granted by law, hence recourse must be had to a special 
papal indult. 

2. Can. 1049 mentions such a special, or rather general, 
indult. Is there any distinction or, perhaps, a contradic¬ 
tion between the special indult mentioned in can. 1040 and 
the general indult of can. 1049? The answer is, no. 
For the former canon draws the line between the com¬ 
mon law and a special indult, while can. 1049 distinguishes 
between a general indult and a particular indult or rescript, 
as is evident from can. 1051. 

Now, then, a general indult is that granted in the 
formulary of March 17, T922, provided, however, that 
the respective Ordinaries had applied for and obtained 
these faculties. For having received the Formulary is 
not sufficient to authorize an Ordinary to make use of 
the faculties therein contained. It is an offer, not a grant. 

These faculties, which we put here in the order of the 
Formulary, concern, as far as marriage is in question, 
either the forum internum or the forum externum. The 
faculties for the forum externum are granted by the Holy 


DISPENSATION FROM IMPEDIMENTS 


277 


Office or the S. C. of Sacraments, and regard public im¬ 
pediments. For the forum internum the S. Poenitentiaria 
is exclusively competent, which, however, may grant facul¬ 
ties for the sacramental as well as for the non-sacramcntal 
forum, as can. 1047 plainly rules. 

I. The Holy Office grants the following faculties: 

I. To dispense from the prohibitive impediment of 
mixed religion and the invalidating impediment of dispar- 
ity of worship. The clause is added: “conditions, restric¬ 
tions and instructions may or should be added according 
as they may be required by various cases and places.” 
The clausulae concern the two conditions or rcvcrsalcs to 
be signed by both parties. The limitationcs may regard 
certain sects or religious, v. g., Jews; instructions will 
touch upon proclamations of the banns, assistance and 
subsequent precautions, perhaps also the conduct of the 
pastor with regard to a specified party. The omission of 
the clauses, excepting the two conditions required by law, 
would not invalidate the use of the faculty. 1 

II. The S.C. of the Sacraments grants these faculties: 

1. To dispense for a just and reasonable cause from all 

minor impediments. These, according to can. 1042, are: 

a) Crime with adultery and promise of marriage; 

1 )) Consanguinity in the third degree of the collateral 
line; 

c) Affinity in the second degree of the collateral line; 

d) Public honesty in the second degree; 

e) Spiritual relationship. 

They may also dispense: (a) frorfi the simple vow 
of virginity; (b) from the simple vow of perfect chastity; 
(c) from the simple vow not to marry; (d) from the 
simple vow to receive sacred orders; (e) from the simple 
vow to embrace the religious state. The added clause “ad 

1 See can. 1060 IT.; our Continent., Vol. V, pp. 141, 179 ff- 


278 POWERS CONCERNING THINGS 

effectum tantum matrimonium contrahendi” is essential, 
but only concerns the vows, not the five minor impedi¬ 
ments; otherwise it should have found its place imme¬ 
diately after “ex causa.” 

2. To dispense 

a) from consanguinity in the second or third degree 
mixed with the first, “provided no scandal or surprise be 
caused thereby.” The “dummodo” savors of an invalidat¬ 
ing clause. However, it should be noticed that neither 
content nor subject of the clause is such as has ever 
been considered to constitute such an invalidating clause. 
If it is such, the faculty appears almost illusory, because 
surprise is seldom avoidable; and who is to judge of that? 

b) From consanguinity in the second degree of the col¬ 
lateral line. Plere the second degree has no mixture with 
the first; the cause is omitted. 

c) From affinity in the first degree of the collateral line, 
either equal or mixed with the second degree; 

d) From public honesty in the first degree, provided 
there be no doubt that one party is not the offspring of 
the other party; this is an essential condition. 

At the beginning of this paragraph 2 there is a clause 
embracing the impediments enumerated, viz. : that the dis¬ 
pensation is to be granted “for a grave and urgent reason 
whenever there is danger in delay and the prospective 
marriage cannot be deferred until a dispensation from 
the Holy See can be obtained.” For an explanation of 
this clause see can. 8i and 84. 

3. To dispense, during and in the act of the pastoral 
visit or sacred mission, and not otherwise, from all the 
above-mentioned matrimonial impediments those who 
live in concubinage. The “pastoral visit” is the one men¬ 
tioned in can. 343, and should, we believe, be extended 
to other diocesan visits, provided they bear the character 


DISPENSATION FROM IMPEDIMENTS 279 


of pastoral, and are not merely friendly, visits. The 
missions are those named in can. 1349. The text does 
not specifically require that the Ordinary himself give the 
mission, but his presence is demanded by reason of the 
“in actu.” As to the meaning of concubinage, see can. 
1078. 

4. To heal in the root (sanandi in radice) marriages in- 
validly contracted on account of one of the minor impedi¬ 
ments, provided it would be very inconvenient to obtain 
renewal of consent for the party who is ignorant of the 
impediment, and provided also the former consent con¬ 
tinues, and there is no danger of a divorce. The party 
aware of the impediment must be told of the effect of 
this sanatio, and a note added in the marriage register (see 
can. 1138 ff.) 

These faculties granted by the Holy Office and the 
S. C. of Sacraments belong to the forum externum. How¬ 
ever, there are to be considered, some rules which the 
Code has established and which must be observed in ap¬ 
plying the faculties granted. 

1. If application for a dispensation has been made to 
the Holy See, local Ordinaries should not use the faculties 
they have, except in accordance with can. 204, § 2. This 
canon rules that an inferior shall not interfere in matters 
brought before a superior except for grave and urgent 
reasons, in which case he must immediately notify the 
superior (can. 1048). 

2. If an impediment from which they cannot dispense, 
concurs with another impediment, or with several public 
impediments, from which they can dispense, they must 
petition the Holy See for all impediments; because the 
minor does not draw the major after it (can. 1050). 

3. If, however, the impediment or impediments from 
which they can dispense are discovered only after peti- 


280 powers concerning things 


tioning the Holy See for the dispensation, they may make 
use of their faculties (can. 1050), despite the canon quoted 
above, because can. 1048 supposes that the impediment 
had been duly known and knowingly applied for, whereas 
canon 1050 supposes ignorance. 

4. The Ordinaries have the right to dispense from an 
impediment, although it be multiple, no matter whether 
there is question of a marriage already contracted or to 
be contracted. For instance, when one is related to his 
partner in the second degree by a double stipes arising 
from the same common progenitors, or is related in the 
third degree and also in the second degree on account of 
common progenitors (can. 1076), the degree is multiple, 
but the species is the same. This practice is also 
followed by the S. Poenitentiaria, and therefore is to be 
applied to occult impediments. He who has a general in- 
dult to dispense from several impediments of a diverse 
species, be they diriment or impedient, can dispense from 
these same impediments if several of them occur in the 
same case. This would happen if, e. g., disparity of cult 
concurred with consanguinity (can. 1049). 

5. A dispensation from the impediment of consanguin¬ 
ity or affinity, granted for a certain degree, is valid even 
though a mistake was made concerning the degree in the 
petition or concession, provided that the real degree be in¬ 
ferior to the one which was mentioned. It is valid also 
though an impediment has been concealed in the petition , 
provided it be of the same species and of an equal or in¬ 
ferior degree (can. 1052). 

A dispensation granted from a minor impediment is 
not vitiated by the fact that a falsehood has been ex¬ 
pressed or the truth suppressed in the petition, even 
though the only final cause alleged be false (can. 1054). 

6. The executor of dispensations from public impedi- 


DISPENSATION FROM IMPEDIMENTS 281 


ments is the Ordinary of the petitioners ( ordinarius ora- 
torum) , who has either drawn up the petition proper, or 
made a recommendation, which is done when the Ordinary 
either has doubts about his competency or some mis¬ 
giving concerning the parties’ good faith. As a gen¬ 
eral rule it may be said that the Ordinary in whose diocese 
the petitioners have their domicile or quasi-domicile di¬ 
rects the petition or recommendation, and receives the 
rescript. He may execute the dispensation even though 
the petitioners ( sponsi ) have given up their domicile or 
quasi-domicile in his diocese at the time the dispensation is 
to be used, and have gone to another diocese with the 
intention of not returning. 

The Ordinary who executes the rescript should inform 
the Ordinary in whose diocese the wedding takes place. 

7. Those who grant dispensations by virtue of delegated 
power from the Apostolic See, should mention the papal 
indult zvhen using it. This text cannot be construed as if 
the mention of delegation affected the validity of a dis¬ 
pensation. In matter of fact it affects only the licitness of 
the same; otherwise the lawgiver would have appended 
an invalidating clause. But it must be expressed in the 
use of both a general and a particular indult, as all the 
clausulae must be observed as far as circumstances permit. 

8. Concerning charges or taxes, the Code is rather 
strict. Can. 1056 says: With the exception of a mod¬ 
erate fee for the expenses of the chancery, the local Ordi¬ 
naries or their officials are not allowed to charge anything 
for dispensations, unless the Holy See has expressly 
granted them permission to make a charge. Every con¬ 
trary custom is reprobated. If a charge is made without 
permission from Rome, they are bound to make restitution. 

We add here can. 1053 concerning an implied dis¬ 
pensation from the impediment of crime, from which the 


282 


POWERS CONCERNING THINGS 


Ordinaries might, by virtue of their faculties, dispense, 
but which needs no such application if a dispensation from 
matrimonium ratum has been obtained. A dispensation 
granted by the Holy Sec from marriage ratified and not 
consummated, or permission given to marry again on ac¬ 
count of the presumed death of the other spouse, always 
includes a dispensation from the impediment arising from 
adultery with promise of, or attempt at, marriage (by 
civil act), if there be need of it; but no dispensation from 
the other two impediments of crime (can. 1075, n. 2, 3). 

III. The 5 . Poenitentiaria grants the following facul¬ 
ties with regard to marriage: 

1. To dispense those who, notwithstanding the private 
vow of perfect and perpetual chastity taken after the 
completed 18th year of age (see can. 1309), have con¬ 
tracted marriage, for the purpose of asking the debitnm 
coningalc. The penitent must be told that he or she is 
obliged to observe the vow outside the lawful use of mar¬ 
riage and if he or she should survive the other party. 

2. To dispense from the occult impediment of crime, 
provided there was no machinatio (conjugicide) on either 
side, and provided the marriage had already been con¬ 
tracted. The supposed consorts must be told of the neces¬ 
sity of secretly renewing their consent, and be given a 
grave and lasting penance. Also to dispense from the 
impediment of crime under the condition stated when a 
marriage is to be contracted, with a grave and lasting 
wholesome penance (see can. 1075 and 1135). 

Here may be inserted what can. 1047 states concerning 
a dispensation granted by way of a rescript. For the text 
distinguishes between a dispensation from an occult im¬ 
pediment granted for the court of conscience, but extra- 
sacramcntally, and a dispensation granted in the act of 
sacramental confession. The former should be carefully 


REASONS FOR DISPENSATIONS 283 

recorded in a special book to be kept separately in the 
diocesan archives, as mentioned in can. 379. No new dis¬ 
pensation is necessary for the external forum if the occult 
impediment should afterwards become public. On the 
other hand, a dispensation granted in the act of sacra¬ 
mental confession does not hold in the external forum, 
and therefore a new dispensation is required if the impedi¬ 
ment becomes public. The beginning of the canon should 
not be overlooked: “unless the rescript of the S. Pocniten- 
iiaria ordains otherwise—nisi aliud fcrat S. Poenitentiariae 
rescriptum.” This, according to the grammatical con¬ 
struction, can only refer to registration. Besides, it 
should be noticed that the faculty granted above (n. 8) 
has no such clause. For the canon refers to a rescript 
directly granted by the sacred tribunal. Furthermore, 
it is noteworthy that the faculty here mentioned (n. 8) 
does not distinguish between a dispensation given in the 
sacramental forum and one given outside the confessional. 
Hence the dispensation may be applied in either. We add 
that if the Ordinary, or the priest empowered to apply 
the dispensation, should forget the penance or give a 
more lenient one than stated in the text, the dispensation 
would nevertheless be valid. 

Entirely different from such accidental conditions are 
the reasons for granting dispensations. For one inferior 
to the Pope cannot licitly or validly grant a dispensation 
without a just and reasonable cause (can. 84, § 1). 

9. Reasons for Dispensations 

A dispensation granted from a minor impediment is 
not vitiated by the fact that a falsehood has been ex¬ 
pressed or the truth suppressed in the petition, even though 
the sole final cause alleged be false. 


284 POWERS CONCERNING THINGS 


Note the term “minor impediment Major impedi¬ 
ments are excluded from the benefit of this canon. Some 
canonical reasons given in the instruction of S. C. P. F. 1 
are the following: 

(1) Angnstia loci or smallness of the place or town 
(not parish). This reason can be alleged by a girl living 
in a place with less than 1500 inhabitants, because in 
such a small place it is difficult for a girl—not a widow— 
to find a husband of equal social standing. 

(2) Aetas feminae superadulta, or relatively advanced 
age of the girl, if she is more than twenty-four years old. 

(3) Deficientia aut incompetentia dotis, if a woman 
has no dowry or property, and a relative would marry or 
endow her under certain conditions. 

(4) Lites super successions bonorum iam exortae vel 
carundcm grave aut imminens periculum, which would be 
the case if the quarrel could be settled by a marriage 
between relatives or if the husband in spc were the only 
man who could settle a lawsuit concerning property or 
inheritance. 

(5) Paupertas viduae, poverty in the case of a widow, 
especially if she has several children. 

(6) Bonum pads, if it is possible by a marriage to 
settle family or feudal quarrels and remove long-standing 
enmities. 

(7) Nimia suspecta periculosa familiaritas, too long 

1 S. C. P. F., May 9, 1877. {Coll. P. F., n.; “augustiam loci 
non esse desumendam a numcro focoruin [the reading in the text: 
locorum is a manifest mistake] cuiusque parochiae, sed a numero 
focoruin cuiusque loci vel etiam plurium locorum, si non dis¬ 
tent ab invicem ultra milliare.” A focus or foculare signifies 
a home or hearth, i.e., family; a small place is one not hav¬ 
ing more than three hundred families, and taking a family 
to consist of five members, we have the number 1500 given 
above. 


LEGITIMATION OF CHILDREN 285 

courtship and great intimacy, which might cause suspicion 
or scandal. 

(8) Copula cum consanguinea, praegnantia ideoque 
legitimatio prolis, which requires marriage in order that 
the damage be repaired and disgrace averted. 

(9) Infamia mulieris, ill-fame of the woman, caused 
by the fact mentioned under n. 7, even though she be 
innocent. 

(10) Revalidatio matrimonii, if a marriage has been 
contracted in the prescribed form and in good faith. 

(n) Periculum matrimonii mixti vcl coram acatholico 
ministro, danger of a mixed marriage, which is present es¬ 
pecially in small congregations and in communities with 
a preponderantly non-Catholic population. 

(12) Periculum incestuosi concubinatus, when near 
relatives live under the same roof and in imminent danger 
of concubinage. 

(13) Periculum matrimonii civilis, danger of a civil 
marriage if a dispensation be denied. 

(14) Remotio gravium scandalorum et cessatio publici 
concubinatus; serious scandal and cessation of public con¬ 
cubinage are generally connected, and here supposed to 
be actually existing. 

(15) Excellentia meritorum, if one has deserved well 
of the Catholic faith by combating its enemies in word 
or writing, or by generosity, or conspicuous learning and 
virtue. 


10. Legitimation of Children 

There are several canons dealing with legitimation of 
children, viz., 1051 and 1114 to 1117, the substance of 
which may here be combined. 

a) Legitimate children are those who are conceived or 


286 


POWERS CONCERNING THINGS 


born in valid or putative wedlock, except those whose 
conception falls within the time when the parents could 
not make lawful use of the marriage rights by reason 
of solemn religious vows or sacred orders by which they 
were bound at the time. Children born at least six 
months after the date of a marriage, or within ten months 
after the rupture of conjugal relations, are presumed to 
be legitimate. 

b) The children born otherwise are consequently called 
illegitimate. There are several classes, according to a 
certain degree of illegitimacy, to be distinguished as fol¬ 
lows : 

1) Natural are those who are born of parents between 
whom either at the time of the conception or birth of the 
child no valid marriage could exist; 

2) Spurious are those born of parents between whom 
at no time a valid marriage could exist. These latter are: 

Adulterine , if born of parents one of whom was at the 
time lawfully wedded to another; 

3) Sacrilegious, if born of parents who were bound by 
solemn religious vows, or in sacred orders; 

Incestuous, if born of sexual relations between persons 
legally related either by consanguinity or affinity in the 
collateral line. 

Nefarious, if born of parents related in the direct 
line, e. g., of a father and his daughter. 

c) Illegitimate offspring is legitimated by the sub¬ 
sequent marriage of the parents, be that marriage con¬ 
tracted validly or putatively, either by a new contract 
or by revalidation, though not consummated, provided the 
parents were capable of contracting marriage between 
themselves either at the time of conception, or of preg¬ 
nancy, or of birth. Legitimated children partake of all 


LEGITIMATION OF CHILDREN 287 


the effects granted by Canon Law, unless the latter makes 
special exceptions. These canonical effects concern es¬ 
pecially the capacity of being ordained without a dis¬ 
pensation and obtaining ecclesiastical benefices and ap¬ 
pointments, also certain prelatures of inferior rank. The 
cardinalate and the episcopacy are excepted (Can. 1116, 

in 7)- 

Can. 1051 is somewhat wider in the application of 
legitimation. It distinguishes between a dispensation 
from a diriment impediment granted either in virtue of 
ordinary power, such as is given by can. 1043-1045, or 
of power delegated by general indult, such as the facul¬ 
ties of March 17, 1922, and a dispensation granted by a 
rescript in a particular case. The former implicitly 
legitimates the offspring, whether already born or merely 
conceived, of the dispensed parents, provided it be not 
adulterine or sacrilegious. Hence no matter how old the 
offspring may be —iam nata —it becomes legitimate by 
the fact that a dispensation was granted by virtue of 
ordinary power or by power delegated through a gen¬ 
eral indult. This is noteworthy, because can. 1116 might 
leave the impression as if only such offspring could 
be legitimated as is born of parents between whom a mar¬ 
riage could have existed either at the time of conception 
or of birth. Can. 1051 makes no such restriction as to 
time, and therefore the favor of legitimation must be 
extended as to time. Only sacrilegious and adulterine 
children are excepted. These need a special grant from 
the Sovereign Pontiff. This favor is not applied when a 
dispensation was granted by way of a rescript given in 
particular cases; for the grantor is not supposed to con¬ 
fer a favor beyond the petition and the terms of the com¬ 
mon law. 


288 POWERS CONCERNING THINGS 


ii. Prohibitive Impediments 

These are the following: (i) the simple vow of vir¬ 
ginity; (2) the vow of perfect chastity; (3) the vow not 
to marry; (4) the vow to receive sacred orders; (5) the 
vow to embrace the religious state; (6) mixed marriage. 1 

Reserved to the Apostolic See are: (1) the vow of per¬ 
fect and perpetual chastity, and from this the local Or¬ 
dinaries who have obtained the faculty from the S. 
Poenitentiaria may dispense in case the marriage has al¬ 
ready been contracted, but not in case the marriage is 
not yet contracted; (2) the vow to enter a religious insti¬ 
tute with solemn vows; consequently the vow to enter a 
religious congregation is not reserved. From all the 
other vows any confessor may dispense and thus remove 
the prohibitive impediment. 

Concerning mixed marriages the following remarks may 
suffice: 

1) The faculty is granted by the Holy Office. 

2) Can. 1065 refers to a class of persons who seem not 
to fall under the law against mixed marriages. Yet the 
Code rules: The faithful should be deterred from mar¬ 
rying those who have notoriously renounced the Catholic 
faith, without, however, joining a non-Catholic sect, or 
those who are notoriously affiliated with societies con¬ 
demned by the Church. The pastor shall not assist at 
such marriages, except after consulting the Ordinary, 
who, after due consideration of all the circumstances of 
the case, may permit the pastor to assist, provided there 
be a weighty reason and sufficient provision is made for 
the Catholic education of all the children. 

1 There is also the prohibitive impediment of legal adoption, 
where this is set up as such by the civil authority (can. 1059). 


PROHIBITIVE IMPEDIMENTS 289 

3) Furthermore, the Code treats (can. 1066) of per¬ 
sons styled public sinners and persons notoriously under 
censure. If such persons wish to get married, and refuse 
to go to confession or to be reconciled to the Church be¬ 
fore marriage, the pastor is not allowed to assist, except 
for a grave and urgent reason, about which he shall, if 
possible, consult the Ordinary. 

4) The banns, as stated above, are omitted (can. 
1026). As to the ceremonies the Code (can. 1102) rules: 
In marriages between Catholics and non-Catholics, the 
consent must be asked as prescribed under can. 1095, 
§ 1, n. 3. All sacred rites are prohibited. If, however, 
greater evils should be foreseen from this prohibition, the 
Ordinary may permit one or other of the usual ecclesias¬ 
tical ceremonies, always, however, excluding the nuptial 
Mass. 

We submit a consideration which has been prompted 
by some enquiries. Must or should the banns be pub¬ 
lished in case one party is newly converted? We think 
the answer should be as follows: Taking the text of 
can. 1022 in the sense of a universal law, such marriages 
should be looked upon as Catholic marriages, and there¬ 
fore the law would apply to them. However, the text 
does not say that all Catholic marriages must be called, 
and can. 1028 allows the Ordinaries to dispense for any 
lawful reason. Neither is the law a perfect one, since 
it has no penal sanction attached to it. The purpose of 
the law is to discover impediments. This aim could be 
obtained only in part, since the friends of the former 
non-Catholic party would hardly attend the service. Be¬ 
sides, the publication of the banns is not intended to 
arouse curiosity or ridicule or surprise. Finally the in¬ 
struction will easily permit the pastor to find possible 
impediments. Hence we believe the banns in the above- 


290 


POWERS CONCERNING THINGS 


mentioned case may be omitted without a special dis¬ 
pensation. 

For a discussion of single impediments see our “Com¬ 
mentary.” 

12. Marriage by Proxy and Through an Interpreter 

A special mandate is needed to contract marriage by 
proxy with a specified person. This mandate must be 
in writing, must be signed by the principal and either by 
the pastor or the Ordinary of the place in which the man¬ 
date is given, or by a priest delegated by either the pastor 
or the Ordinary, or by two witnesses. 

The pastor shall not assist at a marriage which is to 
be contracted by proxy or through an interpreter, unless 
there be a just cause for it, and no doubt exists concern¬ 
ing the genuineness of the mandate or the trustworthiness 
of the interpreter; if time permits, the Ordinary’s per¬ 
mission should be obtained. 

13. Forms of Celebrating Marriage 
(Can. 1094-1102) 

Only such marriages are valid as are contracted before 
the pastor, or the Ordinary of the diocese, or before a 
priest delegated by either the pastor or the Ordinary, and 
at least two witnesses, in conformity, however, with the 
rules laid down in the two following canons, and with the 
exceptions mentioned in canons 1098 and 1099. 

The pastor and the Ordinary may validly assist at 
marriages: 

i°. Only from the day they have taken canonical pos¬ 
session of their benefice, or entered upon their office, pro¬ 
vided they are not excommunicated, or interdicted, or 


FORMS OF CELEBRATING MARRIAGE 291 


suspended from office by a judiciary sentence, or de¬ 
clared suspended, interdicted, or excommunicated. 

2°. Only within the boundaries of their respective ter¬ 
ritory, in which, however, they may validly assist at mar¬ 
riages not only of their own subjects, but also of non¬ 
subjects. 

3 0 . Provided they are not compelled by violence or 
grave fear to ask and receive the consent of the parties. 

The pastor and the Ordinary of the diocese, who 
can validly assist at marriages, may also grant permis¬ 
sion to another priest to assist validly thereat within the 
limits of their respective districts. 

Permission to assist at marriage, given under can. 
1095, must be granted to a specified priest for a specified 
marriage. General delegations are excluded, except in 
case of assistant coadjutors for the parish to which they 
are appointed; in all other cases a general delegation 
would be invalid. 

The pastor or Ordinary of the diocese shall not grant 
such a permission unless he has complied with the regula¬ 
tions of the law for establishing the free status of the 
nupturients. 

The pastor or the Ordinary of the diocese assists at a 
marriage licitly : 

1) After having ascertained the free status of the 
contracting parties, as the Code prescribes, especially in 
can. 1029—1031, and after the publications of the banns 
have been made or dispensed from. 

2) After having ascertained the fact of domicile or 
quasi-domicile or monthly stay of at least one of the 
parties in the place where the marriage is to take place, or 
of actual stay in the case of vagi. 

3) If the conditions set down under the preceding 
number (2) are not verified, the pastor or Ordinary, in 


292 


POWERS CONCERNING THINGS 


order to assist lawfully at a marriage, must have the 
permission of the pastor or Ordinary of the place where 
one of the contracting parties has a domicile or quasi¬ 
domicile or monthly stay, except in the case of vagi, 
who are actually on the road and have no residence or 
home anywhere, or unless a weighty reason excuses from 
demanding such permission. 

Two special cases are mentioned in can. 1098: If the 
pastor, or the Ordinary, or a priest delegated by either, as 
prescribed by can. 1095 and 1096, cannot be had without 
great inconvenience, then: 

1) In danger of death marriage may be validly and 
licitly contracted in the presence of two witnesses; the 
same holds good also where death is not likely, provided 
it may be prudently foreseen that the existing condition 
of things will last for a month. 

2) In both cases, however, if a priest is available, he 
must be called and assist at the marriage together with the 
two witnesses; but the marriage is valid if contracted in 
the presence of the witnesses alone. 

The danger of death need not be imminent, but it must 
be probable or likely. Neither, of course, is it neces¬ 
sary that both parties be in danger. 

The personal extent of the law concerning the ob¬ 
servation of the form is thus stated in can. 1099: The 
following are bound to observe the form prescribed: (1) 
All persons baptized in the Catholic Church, as well as 
those converted from heresy or schism, even though 
they (whether Catholics or converts) have afterwards 
fallen away, when they contract marriage among them¬ 
selves; (2) Catholics as well as converts who marry non- 
Catholics, either baptized or non-baptized, even after 
having obtained a dispensation from the impediment of 


FORMS OF CELEBRATING MARRIAGE 293 

mixed religion or disparity of cult; (3) Orientals who 
marry persons of the Latin rite who are bound by that 
form. 

Saving the rule in n. 1, § 1 of this canon, non-Catholics, 
whether baptized or not, are nowhere bound to observe 
the Catholic form of marriage when they marry among 
themselves . Neither are those born of non-Catholic 
parents and baptized in the Catholic Church, but who have 
grown up from childhood in heresy or schism or infidelity, 
or without any religion at all, if they marry a non-Catholic 
party. 

As to the ceremonies, and the time and place of cele¬ 
brating marriage, note that the local Ordinaries may, 
for good reasons, permit solemn marriages even during 
the period from the first Sunday of Advent to Christmas 
inclusive, and from Ash Wednesday to Easter inclusive, 
provided the liturgical rules are observed and too great 
pomp is excluded (can. 1108). 

All marriages between Catholics should be celebrated in 
the parish church. If another church or oratory, either 
public or semi-public, is preferred, the permission of the 
Ordinary or pastor should be obtained. 

The Ordinary of the diocese may, in some extraor¬ 
dinary case, grant permission to celebrate marriage in a 
private house, provided there be some just and plausible 
reason for doing so. 

Marriages between Catholics and non-Catholics are 
always to be performed outside the church. However, 
should the Ordinary in his discretion be convinced that 
evil might follow from the observance of this law in a 
particular case, he may dispense from it, provided 
the ceremonies are observed in accordance with can. 1102, 

§ 2. 


294 


POWERS CONCERNING THINGS 


Concerning the marriage of conscience it may be ob¬ 
served that it is contracted without the publication of the 
banns and in secret, but not without the formalities pre¬ 
scribed by the Church. Can. 1107 says that no one but 
the Ordinary of the diocese, or his vicar-general, if he 
has received a special commission ad hoc from the bishop, 
may permit such a marriage, and only for most weighty 
and urgent reasons. Such reasons may be the following: 
if two live together in good faith as married, though 
they were never married, if the civil law imposes con¬ 
ditions injurious to the freedom of marriage, if the civil 
power interferes with the liberty, e. g. } of soldiers, or if 
disgrace and discord would be likely to follow from iniqui¬ 
tous laws. 

Can. 1105 describes the pledge of secrecy thus: the per¬ 
mission for such a marriage implies a promise and the 
strict obligation of secrecy on the part of the assisting 
priest, of the witnesses, of the Ordinary and his suc¬ 
cessors, as well as on the part of the one contracting 
party, as long as the other will not consent to the divul¬ 
gation of the marriage. 

Can. 1106 relieves the Ordinary of the obligation of 
secrecy in two cases: if secrecy would cause scandal or 
grave injury to the sanctity of marriage, or if the spirit¬ 
ual ruin of the children were threatened. 

The Code, not without reason, insists on the proper 
recording of marriages, saying: “After the marriage 
ceremony the pastor, or whoever takes his place, shall as 
soon as possible enter in the marriage register the names 
of the parties and witnesses, the place and date of the 
marriage, as well as other data prescribed by the rituals 
or diocesan statutes; and this he must do even though 
another priest delegated by himself or the Ordinary as¬ 
sisted at the marriage.” 


THE PAULINE PRIVILEGE 


295 


It goes without saying that Ordinaries are not exempt 
from this ruling, and that they should inspect the matri¬ 
monial records at the time of the canonical visitation. It 
is a very important matter, yet sometimes neglected. 

14. The Pauline Privilege 

In order that a legitimate marriage contracted between 
non-baptized persons, may be dissolved, even though 
consummated, it is required that: 

1. the marriage must have been contracted between 
non-baptized persons, or, in the words of the Apostle, 
between unbelievers. This is an important point, for if 
there is a doubt whether one of the parties was bap¬ 
tized, the privilege cannot be applied; 

2. That two interpellations be made, viz. : (a) whether 
the other party, too, will be converted and receive Bap¬ 
tism, and (b) whether the other party would at least 
consent to peaceful cohabitation without offense to the 
Creator. These interpellations must always be made, 
unless the Apostolic See declares otherwise; and they 
must be made after Baptism in the Catholic Church. 

The interpellations should, as a rule, be made at least 
in summary and extrajudicial form with the authority 
of the Ordinary of the converted party. The same Or¬ 
dinary may grant to the unbelieving party, who asks for it, 
time to deliberate,—under the explicit condition, how¬ 
ever, that failure to reply within the term conceded will 
be regarded as a negative answer. 

Private interpellations made by the converted party 
are valid, and also lawful, if the form prescribed above 
cannot be followed; but in that case evidence of the in¬ 
terpellation having been made must be given by at least 
two witnesses or in some other legal form. 


296 POWERS CONCERNING THINGS 


Although the baptized party has renewed marital re¬ 
lations with the infidel party after Baptism, he or she 
does not thereby lose the right to contract a new mar¬ 
riage with a Catholic, and that right may be used later 
if the infidel, having changed his mind, withdraws with¬ 
out a just cause, or refuses to cohabit peacefully without 
blaspheming the Creator. 

It may be well to state that the latest Formulary con¬ 
tains nothing concerning the Pauline Privilege. This is 
quite natural, since the Code says nothing as to dispen¬ 
sation from interpellations or as to how the Ordinaries 
should proceed. The Holy See, however, has declared 
that, in ordinary cases, it has the faculties to dispense. 
And these ordinary cases are those in which it is im¬ 
possible to find out the whereabouts of the infidel consort, 
or in which it is ascertained after an extrajudicial and 
summary investigation that the absent spouse can not be 
interpellated. This certainly looks like a declaration that 
interpellation cannot be made and consequently, since, 
the law favors the privilege of faith in doubtful cases, 
the Pauline privilege may be made use of without inter¬ 
pellation in ordinary cases. The procedure should be as 
follows: 

(a) The marriage must have been contracted by both 
parties whilst they were certainly unbaptized; a dubious 
Baptism would not permit the application of the Pauline 
privilege; 

(b) After Baptism, and not before, either a summary 
canonical interpellation authorized by the Ordinary, or 
a private interpellation duly proven, must be made to 
the infidel party concerning the two questions. 

(c) In the case of polygamists one question: “whether 
the unbeliever will be converted,” is sufficient; 


REVALIDATION OF MARRIAGE 


297 


(d) After a negative answer, or undue delay in an¬ 
swering, the baptized party may contract a new marriage, 
in virtue of which the former marriage is dissolved and 
the infidel party becomes free. No other intervention on 
the part of the Ordinary is needed. 

The law (can. 1129) admits separation —which is quite 
different from our so-called legal divorce—in case of 
adultery. Besides it mentions other causes, for example, 
if the other party joins a non-Catholic sect; or gives his 
children an education which is not Catholic; or leads a 
scandalous and disgraceful life; or gravely endangers the 
spiritual or bodily welfare of the other; or renders the 
marital union intolerable by acts of cruelty. These and 
similar reasons give the spouse the right to withdraw by 
appealing to the Ordinary of the diocese, or even without 
legal process, if they are established with certainty and 
delay would be dangerous. 

After the separation, the children must be educated by 
the innocent spouse. If one of the parties is a non-Cath¬ 
olic, the education of the children belongs to the Catholic 
party, unless in either case the Ordinary decides other¬ 
wise for the good of the children and their Catholic 
education is duly provided for. 

15. Revalidation of Marriage 

Simple revalidation may be effected by the parties 
themselves, when both are aware of the invalidity of their 
marriage, by renewing their consent before the pastor and 
two witnesses if the form was neglected. 

The sanatio in radice of a marriage is its revalidation, 
implying besides a dispensation from, or the cessation of, 
the impediment, the dispensation from the (ecclesiastical) 


298 


POWER OF BISHOPS 


obligation of renewing the consent, and, by a fiction of 
law, retroaction as regards the canonical effects. 

Revalidation takes place at the moment the favor is 
granted; the retroaction is understood to reach back to 
the moment of the marriage, unless the contrary be stated. 

A dispensation from the obligation of renewing the 
consent may be granted without the knowledge of one or 
of either party (can. 1138). Local Ordinaries who have 
obtained this faculty from the S. C. of Sacraments may 
apply it to minor impediments only. 

POWERS OF ORDINARIES CONCERNING SACRAMENTALS 

(Can. 1144-1153) 

Sacramentals are objects or actions resembling the Sac¬ 
raments, which the Church makes use of by way of in¬ 
tercession to obtain especially spiritual effects. The 
Apostolic See alone can institute Sacramentals, or authen¬ 
tically interpret those which are in use, or abolish or 
change them. 

No one who lacks the episcopal character can validly 
perform consecrations, unless he is allowed to do so by 
law or in virtue of an Apostolic indult. 

A consecration is a blessing accompanied by anointing 
with holy oils, e. g., a church, an altar, a chalice and 
paten, a bell, etc. To perform such a consecration val¬ 
idly requires either the episcopal character, or a grant by 
law or papal indult. Consequently: 

(a) All bishops may validly consecrate the objects men¬ 
tioned above; but a titular bishop needs the permission 
or consent of the local Ordinary. 

(b) Cardinals may by law consecrate churches, altars, 
and sacred vessels anywhere, with the consent of the 


SACRAMENTALS 


299 


local Ordinary. The same applies to Apostolic vicars and 
prefects, even though they are not consecrated bishops, 
as well as to pro-prefects and pro-vicars, who may con¬ 
secrate chalices, patens, and portable altars within the 
boundaries of their territory and during their term of 
office. 

By law, finally, abbots or prelates niillius may conse¬ 
crate sacred vessels, churches and altars, portable as 
well as immovable. 

(c) By Apostolic indult all those may consecrate who 
have obtained the privilege directly and not by way of 
communication. 

Blessings reserved to bishops are: the blessing of ab¬ 
bots, the consecration of virgins, the blessing of holy 
oils and chrism, the dedication of churches, the consecra¬ 
tion of altars and sacred vessels (not vestments), the 
blessing of bells. These blessings are properly called 
reserved. 

No one who is endowed with the faculty or power of 
exorcizing, is allowed to pronounce an exorcism over a 
possessed person unless he has obtained special and ex¬ 
press permission to do so from the Ordinary. The Or¬ 
dinary may grant this permission only to priests who are 
distinguished for piety, prudence, and integrity of life. 
No priest, shall pronounce an exorcism until he has by a 
careful and prudent investigation ascertained the fact of 
real obsession. 

The Ordinary who is to give this permission is the one 
in whose diocese the exorcism is to take place, or the one 
to whom the priest is subject. For exempt religious 
he is the immediate superior major, for the text simply 
says: Ordinarius. 


300 


POWERS CONCERNING PLACES 


SECTION VI 

POWERS CONCERNING SACRED PLACES AND TIMES 
I. SACRED PLACES 

(Can. i i54-1242) 

Sacred places are places set aside for divine worship, 
or for the burial of the faithful, by a consecration or 
blessing prescribed for this purpose by the approved 
liturgical books. 

Consecration is an act performed by the bishop with 
certain prayers and anointing with oil and chrism, whereas 
a blessing consists of prayers and aspersions with holy 
water, which, even though reserved to the bishop, may 
also be performed by priests. Consecration, therefore, 
is also called solemn dedication, whereas a blessing is a 
less solemn initiation. 

Even regulars have to call in the bishop in whose terri¬ 
tory a church is to be consecrated. Only in case the 
local Ordinary, after repeated requests on the part of the 
regulars, should refuse to perform the consecration, are 
they permitted to call in another bishop, as Leo X enacted 
at the Vth Lateran Council. 

A vicar-general who is endowed with the episcopal 
dignity, may consecrate sacred places only by special com¬ 
mission from the Ordinary, which should be repeated 
every time a consecration is to take place. 

Cardinals who are not bishops may by law validly con¬ 
secrate the churches and altars of their own title. Car¬ 
dinals who are endowed with the episcopal character may, 
in virtue of a special privilege, consecrate churches 


SACRED PLACES AND TIMES 


301 

and altars everywhere with the consent of the local 
Ordinary. 

An Ordinary who is not endowed with the episcopal 
character may grant the faculty of consecrating places 
to any bishop of the same rite. Thus a prelate or abbot 
nullius , if he is not a bishop, may call any bishop of the 
same rite into his diocese for that purpose. The same 
applies to vicars-capitular or administrators. Sede va¬ 
cant e, regulars also must apply to the latter, who shall 
call in a bishop for the purpose. 

The bishop cannot delegate a priest, not even an abbot, 
for consecration; if he does so, the consecration is invalid. 

The right of blessing a sacred place belongs: (1) to the 
Ordinary in whose territory the place is situated, con¬ 
cerning all places which belong to the secular clergy, or 
to non-exempt religious, or to lay persons, even though 
these be an ecclesiastical corporation which erected the 
church; (2) to the major superior, if the place belongs 
to religious who are exempt either in virtue of their 
regular character or by reason of a special privilege. 

The Ordinary as well as the religious superior may 
delegate another priest, whether secular or religious, 
whether pastor or not, to bless a place, but not to conse¬ 
crate it. Hence provincials, abbots, guardians, conven¬ 
tual priors and all who enjoy the power of quasi¬ 
provincials, may bless churches and altars either them¬ 
selves or through others. 

Superiors of religious houses which are not formatae, 
are entitled to perform this blessing because they are in 
fact religious superiors. This applies to directors of 
schools, hospitals, and charitable institutions, provided 
they are priests and have some religious men or women 
under their care. 


3°2 


POWERS CONCERNING PLACES 


After the consecration or blessing a record should be 
drawn up, of which one copy is to be kept in the episcopal 
court, and another in the archives of the church. 

Consecration or blessing can be proved by one trust¬ 
worthy witness, provided no injury is done to a third 
person. 

Neither consecration nor blessing is to be repeated after 
legal proof has been furnished that it has taken place; but 
if there is doubt, the act may be performed provisionally 
{ad cautelam). 

Sacred places are exempt from the jurisdiction of the 
civil authority, and the lawful ecclesiastical authority 
freely exercises jurisdiction in them. 

Churches 

A church is a sacred building dedicated to divine wor¬ 
ship, chiefly for the purpose that it may be made use of 
by all the faithful for public services. 

No church may be built without the express consent, 
in writing, of the diocesan Ordinary. The vicar-general 
cannot give this consent without a special mandate from 
the Ordinary. 

The Ordinary shall withhold his consent until he is 
convinced that the necessary means for building and 
maintaining a new church, and for supporting the 
ministers and defraying other expenditures of religious 
worship, will be forthcoming. 

In order that the new church may not become a detri¬ 
ment to already existing churches, if the loss would not 
be compensated by the spiritual advantage of the faithful, 
the Ordinary shall, before giving his consent, hear the 
interested rectors of the neighboring churches, with due 
regard, however, to can. 1676. This canon rules that 


CHURCHES 


303 


everyone,—in our case every rector of an existing church, 
—who believes he will be injured by the erection of a 
new church, may sue for an injunction before the judge. 
The effect is somewhat similar to legal estoppel, but is 
only temporary, until the judge has decided the case. 
But although the new building should not be continued 
while the case is pending, the builder may go on with 
his work, provided he gives security to restore everything 
to the condition before the work commenced in case sen¬ 
tence should be passed against him. The Code grants 
two months to the plaintiff or objector to prove his con¬ 
tention. This term may be prolonged or shortened by 
the competent judge. Hence the bishop has to listen to 
the objections of the interested rectors, summon the par¬ 
ties and witnesses, in fact, conduct an ecclesiastical trial, 
at least in summary form. 

Religions who wish to build a church or public oratory, 
although they have already obtained the consent of the 
local Ordinary for establishing a house in the diocese or 
city, must obtain his consent before they can build a 
church or public oratory in a specified place. 

The blessing and laying of the corner-stone belongs to 
those who are entitled to bless the church. Hence the 
Ordinary or his delegate, or the superior of exempt re¬ 
ligious or his delegate, may bless and lay a corner-stone. 

Ordinaries should see to it that new churches are built 
and old ones repaired in accordance with the time-honored 
laws of Christian architecture and the canons of sacred art. 

Dedication 

Dedication is performed either by consecration or bless¬ 
ing. 

Consecration essentially consists in anointing with 


304 


POWERS CONCERNING PLACES 


chrism the twelve crosses which are placed on the walls 
or pillars of a church, with the formula: “ Sanctihcetur 
et consecretur hoc templum in nomine Patris et Filii et 
Spiritus Sancti, etc.” The bishop should go around the 
whole church three times. If this cannot be done, he 
should at least go about those parts which are accessible. 
If (e. g., on account of bad weather) the prayers and 
sprinkling of the outside walls cannot take place, what is 
to be done? The S. Congregation answered as follows: 
Recourse should be had to the Holy See if possible; but 
if the consecration cannot be delayed, the solemn function 
may begin in the sacristy, or in the vestibule, or in some 
other convenient place, and the outside walls should be 
sprinkled as well as it can possibly be done; but the 
people are not to be admitted into the church from the 
beginning of the ceremony. One and the same bishop 
must consecrate the church and the main, or at least one, 
altar. 

Blessing a church consists essentially in sprinkling the 
upper and lower part of the walls, either inside or outside, 
with holy water. All churches and public oratories must 
be at least blessed according to the formula in the Roman 
Ritual. Unless they are blessed, no titular feast may be 
celebrated in them. The fact that the cemetery is blessed 
does not create a presumption in favor of the church. 
Before the blessing is imparted, divine service may not be 
celebrated in a church. This means that Mass may not 
be said, the sacraments may not be administered, and 
there is to be no preaching; for these offices pre-eminently 
constitute divine worship (cfr. can. 2256). 

If it can be reasonably foreseen that a church will 
be turned to profane uses, the Ordinary shall not consent 
to its being built, or consecrate or bless it after it is 
built. 


CHURCHES 


305 


Cathedral churches and also, as far as possible, col¬ 
legiate, conventual, and parish churches; should be 
solemnly consecrated. 

Churches built of wood, iron, or some other metal, may 
be blessed, but not consecrated. 

An altar may be consecrated even if the church is not 
consecrated; but together with the church the main altar 
(or, if the main altar is already consecrated), a side 
altar must be consecrated. 

Although churches may be consecrated on any day, 
it is meet that Sundays or holydays of obligation should 
be chosen for that purpose. 

The consecrating bishop as well as those who have 
petitioned for consecration, shall fast on the day preced¬ 
ing the consecration. 

At the consecration of a church or altar, the consecrat¬ 
ing bishop, though he has no jurisdiction over the ter¬ 
ritory, may grant an indulgence of one year to all who 
visit the church or altar on the day of the consecration; 
of fifty days for the anniversary of the consecration; of 
100 days if he is an archbishop, 200 if he is a cardinal. 

The feast of the consecration of a church is to be cele¬ 
brated annually according to the rubrics. 

The latest decrees concerning this subject are: Pro¬ 
vided the cathedral church has been consecrated and not 
merely blessed: 

(a) The feast of the dedication is a primary feast and 
festum Domini; 

(b) The anniversary must be celebrated as a first-class 
feast with octave throughout the diocese by the secular 
clergy and also by the religious clergy if the latter follow 
the diocesan calendar; if they have their own calendar, 
they must celebrate the anniversary of the dedication of 
the cathedral as a feast of the first class without octave; 


3 o6 POWERS CONCERNING PLACES 

(c) The anniversary must be celebrated on the day 
proper and not transferred to a Sunday; 

(d) The anniversary of the dedication of the cathe¬ 
dral must be celebrated separately from the dedication of 
all the churches of the diocese; for the latter feast ( dedi - 
catio omnium ecclesiarum dioeccseos ) a day may be desig¬ 
nated by the Ordinary; 

(e) The same rule must be observed by religious or¬ 
ders or congregations with regard to the celebration of the 
dedication of all the churches of their institute; 

(f) The feast of the dedication of all the churches of 
a diocese (or institute) must be understood in the sense 
that each church celebrates its own dedication. 

Each consecrated or blessed church must have its own 
title, which cannot be changed after the dedication. 

The titular feast is to be celebrated annually accord¬ 
ing to the rubrical laws. 

Churches cannot be dedicated to a Beatus without an 
Apostolic indult. 


Church Bells 

It is becoming that every church have hells, by which 
the faithful may be called to the divine service and other 
religious acts. 

Church bells must be either consecrated or blessed ac¬ 
cording to the rites prescribed in approved liturgical 
books. 

Their use is regulated exclusively by the church 
authorities. 

Aside from the stipulations made by the donor, with 
the approval of the Ordinary, a blessed bell cannot be 
used for profane purposes, except in cases of necessity, 


LOSS OF CONSECRATION 


307 


or by permission of the Ordinary, or by lawful custom. 

The consecration or blessing of bells is reserved to the 
local Ordinary, and delegation to a simple priest can be 
given only by the Holy See. 

Loss of Consecration 

A church does not lose its consecration or blessing 
unless it is totally destroyed, or the larger part of the 
walls collapses, or the Ordinary turns the building over 
to profane uses, according to can. 1187. 

It would be equal to complete destruction if the whole 
wall, apse and roof were removed. But a partial repair 
of, say, two-fifths of the walls would not require re¬ 
consecration. Thus, e. g., if the framework or joists of 
a church were consumed by fire, or the framework of 
the tower had fallen upon the arch of the middle aisle and 
damaged the walls, no re-consecration would be required. 
Even if the whole church is successively repaired, re¬ 
consecration is not required, provided each part repaired 
is smaller than the parts not repaired. Furthermore, al¬ 
though the whole plastering ( intonaco ) were removed to¬ 
gether with the crosses, and new plastering, stucco, or 
marble substituted, no re-consecration or re-blessing would 
be necessary; but the crosses should be painted anew or 
replaced by new ones. Even if the church is considerably 
enlarged and interiorly embellished with marble or stucco, 
as long as the old walls remain in the proportion of 3 to 2 
or 5 to 3, no re-consecration or re-blessing is required, 
but the crosses, as stated above, should be renewed. 

As to the reversion of a consecrated or blessed church 
to profane uses we refer to can. 1187. The Ordinary 
alone can do this, and hence, if a church was turned 


308 POWERS CONCERNING PLACES 


over to profane uses by human malice or violence, it 
may be called defiled, provided can. 1172 is verified, but 
it is not execrated. 

Effects of Consecration 

One of the effects of consecration or blessing is that, in 
a properly dedicated sacred edifice all ecclesiastical rites 
may be performed, with due regard to parochial rights, 
privileges, and lawful customs. The Ordinary may, for 
a just cause, determine the hours of service, provided the 
church does not belong to exempt religious. 

Desecration 

By desecration ( pollutio ecclesiae, as it was formerly 
called) is understood the moral violation of a church 
by which it is diverted from sacred to profane uses. It 
is induced only by acts described in the law and differs 
from execration in so far as the latter entails the loss of 
consecration or blessing, whilst desecration requires rec¬ 
onciliation or rehabilitation only. 

A church is violated (or desecrated) by the following 
acts, provided they are certain, notorious, and committed 
in the building itself, to wit: 

1. The crime of homicide; 

2. Injurious and serious shedding of blood; 

3. Impious or sordid use; 

4. The burial of an infidel or one excommunicated by 
a declaratory or condemnatory sentence. 

The desecration of a church does not entail the des¬ 
ecration of the cemetery, even though the latter adjoins 
the church, and vice versa, desecration of the cemetery 
does not involve desecration of the church. 


RECONCILIATION OF CHURCHES 


309 


The consequences of desecration are twofold: cessation 
of divine services and obligation of reconciliation. Until 
reconciliation is effected, it would be unlawful to hold 
divine services in a desecrated church or to administer 
the Sacraments or bury corpses there. Hence all litur¬ 
gical services which have been instituted by divine or ec¬ 
clesiastical law and are performed exclusively by the 
clergy, are strictly forbidden in a desecrated church. 
However, though the injunction is grievous, no penalty, 
either of censure or irregularity, is attached to the trans¬ 
gression. 

If the desecration happens during divine offices, these 
must cease immediately. Thus the canonical hours, or 
preaching, or any function should be immediately stopped. 

Reconciliation 

A church which was only blessed may be reconciled by 
its rector or by any other priest with the (at least) 
presumed consent of the rector. 

A consecrated church can be validly reconciled only by 
those mentioned in can. 1156. Hence the Ordinary of 
the diocese is entitled to reconcile consecrated churches 
of his own territory, which belong to the secular clergy 
or non-exempt religious or laymen; and the higher supe¬ 
rior of exempt religious can reconcile churches belonging 
to his order. 

However, says § 3 of can. 1176, in cases of serious and 
urgent necessity, if the Ordinary cannot be reached, the 
rector of a consecrated church may reconcile it and in¬ 
form the Ordinary afterwards. 

Reconciliation of a blessed church may be effected with 
ordinary holy water, whereas for a consecrated church 
water blessed according to the liturgical laws should be 




3io 


POWERS CONCERNING PLACES 


used. However, not only bishops, but also priests who 
perform the act of reconciliation, may bless this water. 
The Roman Ritual states that a priest endowed with 
the faculty of reconciling a consecrated church,—hence 
also the rector of the church in case of necessity,—must 
wear amice, alb, cincture, stole, and cope of white color. 
He must follow the rite prescribed in the Pontifcale, and 
consequently use water blessed by the bishop. 


Decorum of the Church and Ius Asyli 

All to whom it pertains shall take care that the churches 
are kept neat, as becomes the house of God; business and 
fairs, even though held for pious purposes, must be kept 
away from them, and in general everything that is incom¬ 
patible with the holiness of the place. 

Churches enjoy the right of asylum, which implies that 
criminals seeking refuge therein, except in case of urgent 
necessity, may not be taken out without the consent of 
the Ordinary or the rector. 


Administration of Churches 

The administration of funds destined for the repair 
and embellishment of cathedral churches belongs to the 
bishop and the chapter conjointly. However, since there 
are no chapters, properly so-called, in America, and the 
diocesan consultors cannot claim any title to the adminis¬ 
tration of cathedral funds, it follows that the bishop him¬ 
self is responsible. He may entrust the cathedral pastor 
with this important matter, but the ultimate responsibility 
is the bishop’s. This is more clearly enunciated in the 


ADMINISTRATION OF CHURCHES 311 


ruling of the first Westminster Provincial Council, 1852, 
n. 24: “The right to the temporal and spiritual adminis¬ 
tration of the cathedral church remains with the bishop, 
unless the Holy See shall have provided otherwise.” 

Offerings made in favor of a parish church or mission, 
or of a church located within the boundaries of a par¬ 
ish or mission, are to be administered by the respective 
pastor or missionary, unless the church in question has 
its own separate administration, distinct from the adminis¬ 
tration of the parish church or mission, or unless a par¬ 
ticular law or lawful custom rules differently. 

The pastor, the missionary, the rector of a secular 
church, be he a secular priest or a religious, must adminis¬ 
ter these offerings according to church law and render an 
account to the Ordinary. 

Which are the offerings spoken of in the Code? The 
description of these may safely be taken from the Second 
Provincial Council of Westminster and the Third Plen¬ 
ary Council of Baltimore. They are: pew-rent, collec¬ 
tions taken up during Mass, seat-money, and funds raised 
by lectures and house collections. Of all these, therefore, 
the administrator, as far as the repairs and embellishment 
of the church and divine service are concerned, must give 
an account to the Ordinary every year. 

If other administrators, either clerical or lay, are 
chosen, these together with, and under the presidency of, 
the ecclesiastical administrator, constitute the board of 
trustees or council of the church fabric. 

The members of this committee, unless otherwise le¬ 
gally provided, are appointed by the Ordinary or his dele¬ 
gate and may be removed by him for weighty reasons. 

The law does not command the appointment of trus¬ 
tees, but only says, if. Hence, though prudence may die- 


3 12 


POWERS CONCERNING PLACES 


tate the measure, as the Third Baltimore Council states, 
a bishop or pastor would by no means act contrary to the 
law if he did not appoint trustees. It cannot be denied 
that trustees have at various times in the past acted des¬ 
potically and with little deference to the spirit and laws 
of the Church. Hence the Code desires that they be 
appointed and removed by the Ordinary or his delegate, 
who in this case may properly be the pastor. But the text 
admits another lawful way of choosing trustees, and 
hence the enactments of the Third Council of Baltimore 
are in perfect keeping with the Code and may be fol¬ 
lowed as a safe guide. 

Can. 1184 commands the trustees to take due care of 
the church funds, according to can. 1522 and 1523, and 
not to interfere with the spiritual administration of the 
parish. They are especially forbidden to meddle: 

1. With the functions of divine worship in the church; 

2. With the manner and time of ringing the bells or 
the order of services in the church and cemetery; 

3. With determining the manner of taking up collec¬ 
tions, making announcements, and other acts which refer 
to divine worship or the adornment of the church; 

4. With the arrangement of the altars, communion 
rails, pulpit, organ and organ loft, seats and benches, 
collection boxes, and other things belonging to divine 
service. 

5. With the admission or rejection (because of unfit¬ 
ness according to traditional usage or the laws of the 
Church) of sacred utensils and other things which are 
destined either for divine worship or for the embellish¬ 
ment of church or sacristy. 

6. With the manner of writing, arranging or keeping 
the parochial books and other documents which belong to 
the archives of the parish. 


REPAIR OF CHURCHES 


3i3 


Repair of Churches 

With due regard to special and lawful customs and 
concordats, and to the duty imposed by civil law: 

I. The duty of repairing the cathedral church rests on 
the following in the order named: 

a) On the church funds after deduction of the ex¬ 
penses necessary for the upkeep of divine worship and 
the ordinary administration of the church; 

b) On the bishops and canons according to their re¬ 
spective income, after deducting the necessary support; 

c) On the faithful of the diocese, whom, however, the 
Ordinary should induce by persuasion rather than com¬ 
pulsion to contribute to the necessary expenses according 
to their means. 

A dilapidated church, which is unfit for sacred use 
and has absolutely no funds from which repairs might be 
made, may be used for decent profane purposes by the 
Ordinary. Whenever this happens, all liabilities and 
revenues are to be transferred to another church by the 
Ordinary, and if the abandoned church was a parish 
church, its title, too, must be transferred. 

Oratories 

An oratory is a place destined for divine worship, not, 
however, principally for the purpose of having all the 
faithful worship there publicly. 

A public oratory is one built for the benefit of a corpor¬ 
ation, or of private individuals, but in such a manner 
that all the faithful have the right to frequent it, at least 
at the time when divine services are held there. 

Semi-public oratories are such as are built solely for 
the convenience of a certain community or class of 


3H 


POWERS CONCERNING PLACES 


people, and hence are not open to all the faithful indis¬ 
criminately. 

Private or domestic oratories are those erected in pri¬ 
vate homes for the convenience of a family or private 
individuals. 

The oratories of resident or titular Cardinals and bish¬ 
ops, even though they be private, enjoy all the rights and 
privileges of semi-public oratories. 

Public oratories are governed by the same law as 
churches. 

In a public oratory, therefore, provided it has been 
dedicated for permanent divine worship by the authority 
of the Ordinary through blessing or consecration, all sa¬ 
cred functions may be held which are not forbidden by 
the rubrics. 

Semi-public oratories can be erected only with the per¬ 
mission of the Ordinary. The superior of exempt relig¬ 
ious may permit such an oratory to be erected for the 
convenience of his subjects. 

The Ordinary shall not grant this permission before 
he has inspected the oratory either personally or through 
an ecclesiastical delegate, and found it properly fitted. 

After the permission has been granted, the oratory 
may not be put to private uses without the authority of 
the same Ordinary. 

In colleges and boarding schools for the young, in 
high schools and lyceums (intermediate classical schools), 
in fortresses and barracks (garrisons), in prisons and 
asylums, etc., one principal oratory may be erected, unless 
the Ordinary judges that necessity or great usefulness 
demand more. In lawfully erected semi-public oratories, 
all divine offices and ecclesiastical functions may be held, 
as far as the rubrics and the rulings of the Ordinary 
permit. In private cemetery chapels, mentioned in can. 


ALTARS 


315 

1190, the Ordinary of the diocese may grant permission 
for several Masses to be said habitually. 

In other domestic oratories the local Ordinary may 
permit one Mass to be said, not habitually, but upon oc¬ 
casion, in some extraordinary case, and provided there 
is a just and reasonable cause. This permission presup¬ 
poses that the Ordinary has inspected the oratory and 
found it fit. 

In domestic oratories erected by virtue of a papal indult, 
unless expressly provided otherwise in said indult, only 
one low Mass may be said daily, except on the more 
solemn feastdays, and no other ecclesiastical functions 
are allowed. Before the indult takes effect the Ordinary 
must inspect and approve the oratory. He may also, for 
just and reasonable causes other than those for which 
the indult was granted, permit a Mass -to be said there 
even on higher feastdays, but only per modnm actus. 

Domestic oratories cannot be consecrated or blessed 
like churches. They may, however, and should receive 
the so-called bcnedictio loci or domus novae, as contained 
in the Roman Ritual. 

Notwithstanding this defect of consecration or blessing, 
domestic oratories must be exclusively reserved for divine 
service and not be used for domestic purposes. 

Altars 

In the liturgical sense of the word an immovable or a 
fixed altar means the upper table with its supports, con¬ 
secrated together as a whole with the table. A movable 
or portable altar is a stone, generally of small size, which 
is consecrated alone, or the same stone with its support, 
even though the latter was not consecrated together with 
the table. 


3 i6 POWERS CONCERNING PLACES 

In every consecrated church at least one, preferably 
the main, altar must be immovable; but in churches that 
are only blessed all altars may be movable. 

The table of an immovable altar as well as a sacred 
stone must consist of one natural stone, whole and not 
easily crumbled. 

In an immovable altar the table or stone plate must 
extend over the whole altar and be properly joined to 
the support; the support itself, or at least the side props 
or columns which support the table, must be of stone. 

The sacred stone (portable altar) must be so large 
that at least the host and the larger part of the base of 
the chalice may find room thereon. 

In-an immovable altar as well as in an altar stone there 
must be, according to the rubrical prescriptions, a sepul¬ 
chre containing relics of saints and closed with a stone. 
The sepulchrum is a small square or oblong opening made 
in the table or solid support of the altar, in which the relics 
are placed. In a fixed or immovable altar the sepulchrum 
may be placed either behind the altar or midway between 
its table and foot; or at the front; or midway between 
its table and foot; or in the table at its centre, somewhat 
towards the front edge, if its base be solid or hollow; 
or in the centre on the top of the support, if it be solid. 

In portable altars the sepulchrum is located on top of 
the stone, usually towards its front edge. A portable 
altar consisting of two parts, the upper one of which was 
of stone, whereas the lower was of wood, with a hollow 
space between both for the relics, which thus touched 
both the stone and wooden parts of which the sepulchrum 
was formed, was declared inadmissible. The sepulchrum 
must be of natural stone, not of metal, brass or cement; 
the lid, too, must be of stone, though cement may be used 
for closing it. If cement was employed for the whole 


ALTARS 


3i7 


sepulchrum, the altar must be reconsecrated; but the S. 
Congregation grants faculties to use the short formula 
and have it done by a delegated priest. 

The cement to be used for closing the sepulchre must 
be blessed by the bishop according to the formula pre¬ 
scribed for fixed altars. The bishop must lay the cement 
on the sepulchre and close it, but not place his seal on it. 

As to the relics to be placed in the sepulchre, it is un¬ 
derstood that only authenticated relics are admitted. If 
they are authenticated, it matters not whether they are 
of known or nameless Saints. Doubtful or uncertain 
relics are not to be mixed with authenticated ones. 
If relics lie open and no attestation of their authenticity 
can be found, they must be replaced by authentic ones 
and reinclosed in the sepulchre. 

The quality of the relics is not determined, except that 
they must be of Saints. However, it is the general prac¬ 
tice, confirmed by official decisions, that they should be 
relics of at least one martyr, to which relics of confessors 
and virgins may be added. Whether these relics must 
be taken from the body (direct relics) or may be objects 
connected with the Saint (indirect relics), is nowhere 
stated, although some writers, like Gardellini, insist on 
direct relics. 

It may also be added that there should be, at least for 
licit consecration, relics of more than one Saint. But 
it is permissible to enclose relics of a Confessor or Virgin, 
provided a relic of one martyr be also placed in the 
sepulchrum. 

Besides those especially privileged, all bishops may 
consecrate portable altars; as to fixed altars can. 1155 
must be observed. 

Those specially privileged are the Cardinals, vicars 
Apostolic and prefects Apostolic, as well as their pro- 


318 POWERS CONCERNING PLACES 


vicars and pro-prefects during the time of vacancy, abbots 
and prelates nullius. Besides these, all bishops, whether 
residential or titular, may consecrate portable altars. But 
fixed altars can be consecrated only by bishops and prel¬ 
ates or abbots nullius , if the latter have received the 
required blessing. 

The consecration of a fixed altar, if performed apart 
from the dedication of the church in which it is stationed, 
may take place on any day, but it is becoming that this 
ceremony should be performed on a Sunday or holyday of 
obligation. 

An immovable altar loses its consecration if the table 
(mensa ) is removed from its support, be it only for 
a moment; but in this case the Ordinary may grant per¬ 
mission to a priest to reconsecrate the altar with the short 
rite and formula. 

Note that the support of a fixed altar is consecrated to¬ 
gether with the table, as a whole, and therefore any re¬ 
moval, no matter for what reason, of the mensa from its 
support, necessitates reconsecration. But if only the 
images, or titles, or ornaments are removed, whilst the 
support and the mensa remain united, reconsecration is 
not required. 

Fixed as well as portable altars lose their consecra¬ 
tion : 

i. By a fracture which is regarded as very consid¬ 
erable by reason either of the break itself or of the 
anointed place; 2. if the relics are removed, or the lid 
of the sepulchre is broken or removed, unless it be done 
by the bishop or his delegate for the purpose of fastening, 
repairing, or replacing it, or for the purpose of inspecting 
the relics. 

The bishops who have obtained the faculties granted 


ALTARS 


319 


by the S. Rit. C., are entitled to make use of them as 
follows: 

To appoint priests, dignitaries if possible, for the 
purpose of consecrating fixed and portable altars. Fixed 
altars must be consecrated as prescribed in the Pontificate 
Romanum, while portable altars may be consecrated ac¬ 
cording to the shorter formula of the Rituale. However, 
since the new edition of the Ritual has not yet been 
published, the formula is communicated to the Ordinaries 
by the S. Congregation together with the faculty itself. 
It has also been published in the Acta Apostolicae Sedis. 
“In aliqua ecclesiastica dignitate constituta” would, in 
the strict sense, imply that the ecclesiastic be vested, not 
only with precedence, but with jurisdiction in the exter¬ 
nal forum. This would include the vicar-general, the 
provosts and deans of cathedral and collegiate chapters, 
the custos s. supellectilis and the precentor. In countries 
where chapters are not established, only the vicar-general 
would be a dignitary, besides prelates of exempt religious. 
However, we hardly believe that the wording of the fac¬ 
ulty should be taken in this strict sense. We rather think 
that all the so-called monsignori, prothonotaries and domes¬ 
tic prelates are included. 

Furthermore, the text says: “si fieri potest Hence, 
if there should be any plausible reason for appointing 
others, be it that there are no monsignori in the diocese, 
or that they are prevented from accepting the faculties, 
the bishop may designate other priests. However, the 
bishop cannot licitly delegate all priests of his diocese for 
this sacred function. It would, however, not be against 
the intention of the grantor to appoint the rural deans or 
some diocesan consultor—although these are not included 
in the term “dignitaries”—for this purpose. 


3 2 ° 


POWERS CONCERNING PLACES 


Under the same clause, vis., “if possible,” etc., the 
bishop may designate some priests for reconciling altars, 
both fixed and portable. If the desecration was caused 
by a considerable fracture, or by the removal of the relics, 
or by a fracture or removal of the sepulchre, the shorter 
formula B may be used. If the table or mensa was 
severed from its support, formula A must be employed; 
though in this latter case no faculty is required, since 
the Code itself (can. 1200, §1) grants this power, and 
therefore, the latter faculty may be communicated habit¬ 
ually to all priests. 

As the church, so also the altars, at least those that 
are fixed, must have each its ozun title. 

The principal title of the main altar must be the same 
as that of the church. For instance, if the church is 
dedicated to the Immaculate Conception, this must also 
be the title of the high altar. But besides this, the altar 
may also bear the name of a Saint. 

With the permission of the Ordinary the title of a 
portable altar may be changed, but to change the title of 
a fixed altar requires a papal indult. 

Ecclesiastical Burial 

The Catholic Church has the right to possess her own 
cemeteries. Where this right has been violated, and 
there is no hope of recovering it, the local Ordinaries 
shall see to it that the civil cemeteries are blessed, provided 
the majority of the persons to be buried in them belong 
to the Catholic faith, or at least that Catholics are granted 
a separate space, which should be blessed. 

If not even that much can be obtained, then the single 
graves must be blessed according to the liturgical books. 

The bodies of all the faithful should be buried in 


ECCLESIASTICAL BURIAL 


321 


cemeteries, which may be solemnly or simply blessed ac¬ 
cording to the ritual books. The solemn blessing, as con¬ 
tained in the Roman Pontifical, can be imparted only by 
the Ordinary of the diocese, whereas the simple blessing 
may be imparted by the local Ordinary, if the cemetery 
belongs to the secular or non-exempt religious clergy. 
However, the bishop may delegate any priest for this 
function. If the cemetery belongs to exempt religious, 
the major superior or his delegate is competent. 

Eacn parish should have its own cemetery, unless the 
local Ordinary assigns a common cemetery to several 
parishes. 

Exempt religious may have their own cemetery, distinct 
from the common cemetery of the faithful. 

The Ordinary of the diocese may permit other corpora¬ 
tions and private families to have their own burial places 
separate from the common one and blessed like a cemetery. 

Lots and vaults (sepulchra particularia) may be con¬ 
structed on the parish cemetery with the written consent 
of the local Ordinary, or his delegate, the superior, either 
local or major, of the corporation on whose cemetery such 
a private sepulchre is chosen. These private sepulchres, 
or graves, or lots may, with the consent of the Ordinary 
or superior, be alienated. Alienation is, of course, here 
to be understood of a conveyance for burial purposes. 

Priests and clerics should, if possible, have a special 
burial place, located in a more prominent part of the 
cemetery; if it can conveniently be done, the priests’ lot 
should be distinguished from that of the lower clerics. 

The burial-place for infants should be separated from 
that for adults, as there is also a special rite for the 
burial of infants. Exempt religious, too, if they have 
plots for elective sepulture in their cemeteries, should set 
lots apart for the burial of children. 


322 


POWERS CONCERNING TIMES 


The local Ordinaries, pastors and superiors, whom it 
concerns, shall take care that the inscriptions on the tomb¬ 
stones, eulogies, and adornments of monuments are in 
keeping with Catholic faith and piety. 

No body that has been laid to final rest with eccle¬ 
siastical ceremonies can be exhumed without the per¬ 
mission of the Ordinary. The Ordinary shall not grant 
this permission if the corpse cannot be distinguished with 
certainty from other bodies. 

The Ordinary may, after examining the special cir¬ 
cumstances, determine—preferably at a synod and by 
means of diocesan statutes—when and under what con¬ 
ditions the transportation of corpses to the church or 
place of burial is inconvenient. If the parishes belong to 
different dioceses, the decision lies with the bishop in 
whose diocese the person died. 

If a cardinal dies in the city of Rome, his body is to 
be brought for the funeral service to the church which 
the Roman Pontiff may designate for that purpose; if he 
dies outside the city, the corpse must be carried to the 
most prominent church of the city or town where he 
died, unless he chose another. 

On the death of a residential bishop, even if he was a 
cardinal, or an abbot, or a prelate nullius, the body must 
be brought for the funeral service to the cathedral or 
abbatial or prelatial church, if this can be done conven¬ 
iently; if not, to the more prominent church of the city 
or town, unless the prelate chose another. 

Professed religious of whatever rank or dignity, except 
bishops, are deprived of the right of choosing their fu¬ 
neral church or burial place. 

As the text speaks of bishops in general, all, resident 
as well as titular bishops, are included. 

When a cardinal or bishop dies in his episcopal city, 


ECCLESIASTICAL BURIAL 


323 

outside the city of Rome, the cathedral canons shall 
provide appropriate funeral services and burial. 

The priest who conducts a body to the funeral church 
or the grave-yard is entitled to pass with stole and raised 
cross through a strange parish or diocese, without the 
permission of either pastor or Ordinary. 

Except for a weighty and just reason, approved by 
the Ordinary, the pastor has no right to exclude secular 
or religious clerics, or pious societies whom the family 
or the heirs wish to invite, from accompanying the body 
to the church or grave-yard and assisting at the funeral. 
But the clergy of the respective church should be invited 
above all others by the family of the deceased or his heirs. 

The local Ordinaries, each one for his own territory, 
shall draw up a list of funeral fees, if none such exists, 
with the advice [not consent] of the cathedral chapter, 
and, if deemed advisable, with the cooperation of the rural 
deans and pastors of the episcopal city. In drawing up 
this list they shall take into account the lawful customs 
of the district as well as the circumstances of persons 
and times. The stole fees should be moderate and so 
determined that every occasion for quarrel and scandal 
is removed. 

If the list contains several classes of funeral services, 
arranged by degrees, those interested may choose any 
of these. 

No person who has died without Baptism may he ad¬ 
mitted to ecclesiastical burial. Catechumens, however, 
or such as are preparing to embrace the Catholic faith, 
may be given ecclesiastical burial if they have died with¬ 
out baptism through no fault of their own. 

Although baptized, one may be deprived of ecclesiastical 
burial if he has been expressly declared deserving of that 
penalty under the law. 


32 4 


POWERS CONCERNING TIMES 


Hence, unless they have given signs of repentance be¬ 
fore death, the following are to be deprived of ecclesias¬ 
tical burial : 

1. Notorious apostates from the Christian faith and 
persons who notoriously belonged to a heretical or schis- 
matical sect, or to the Masonic sect, or other societies of 
the same kind. 

2. Persons excommunicated and interdicted after a con¬ 
demnatory or declaratory sentence. 

3. Those who have deliberately killed themselves. 

4. Those who died in a duel or from a wound received 
in a duel. 

5. Those who ordered their body to be cremated. 

6. Other public and manifest sinners. 

If it can be done without great inconvenience, the body 
of an excommunicatus vitandus, who was buried in 
sacred ground against the law, should be exhumed, with 
the permission of the bishop, and be buried in a lot espec¬ 
ially assigned for the purpose. 

II. HOLY SEASONS—'FEAST AND FAST DAYS 

(Can. 1243-1254) 

The supreme authority of the Church alone can estab¬ 
lish, transfer, or abolish holydays as well as days of absti¬ 
nence and fasting. 

But the local Ordinaries may, per modum tantum actus 
(i. e., for a transient reason and for the time being, but 
not habitually), prescribe the observance of a feastday 
or of a day of fast and abstinence. 

Not only the local Ordinaries, but also the pastors, 
may in individual cases and for a just cause dispense their 
subjects from the common law of keeping feasts and 
from the observance of abstinence and fast, or from 


HOLY SEASONS 


325 


both fast and abstinence. Ordinaries cannot issue synodal 
acts dispensing persons and families from the canon law, 
or grant a habitual dispensation. But they may, because 
of a great concourse of people, or for reasons of public 
health dispense the whole diocese or any place therein 
from the law of fasting and abstinence, or from both 
combined. This liberal concession renders special facul¬ 
ties (not particular indults; see can. 1253) superfluous. 
What is meant by a great concourse of people has been 
authentically explained by the Holy Office. It is not 
necessary that people from other towns or cities are 
present, but a multitude of inhabitants of the same city 
or town assembled for an occasion suffices. Of course, 
the occasion should be Catholic and religious, for instance, 
a centenary, a pilgrimage, a large meeting of Catholic 
societies, etc. As our county and State fairs offer a se¬ 
rious occasion for violating the law of fast and abstinence, 
such an event would constitute a sufficient reason for 
dispensing the participants. 

Religious superiors of exempt clerical institutes enjoy 
the same powers as pastors with regard to all the persons 
mentioned in can. 514, §1. 

The patronal feast of a diocese, city or town does 
not oblige by ecclesiastical precept, though the Ordinaries 
may transfer the external celebration of the same to the 
following Sunday. 

Here may be inserted a decision of the President of 
the Pontifical Commission for the Authentic Interpreta¬ 
tion of the Code, given in October, 1919. The question 
had been asked: Can it be safely held, as some authors 
taught, that, after the promulgation of the Code, flesh 
meat may be eaten more than once a day on days for 
which only fasting, but no abstinence is prescribed? 
The answer was : “Negative ” 


326 POWERS CONCERNING WORSHIP 


SECTION VII 

DIVINE WORSHIP 

(Can. 1255-1321) 

Worship exhibited to God, the Saints, and the Blessed 
Virgin Mary in the name of the Church, by ministers 
lawfully appointed for that purpose and through acts 
established by the Church, is called public worship; all 
other worship is private. 

It is unlawful for Catholics to assist actively at or to 
take any part in, the religious services of non-Catholics. 
Passive or merely material presence may be tolerated 
for reasons of civil duty or honor, at funerals, weddings, 
and similar celebrations, provided no danger of perver¬ 
sion or scandal arises. In doubtful cases the reason for 
assisting must be grave, and recognized as such by the 
bishop. 

Active participation means cooperation or assistance 
at non-Catholic services, for instance, by singing, playing 
the organ, taking up a collection during the services, or 
acting as usher. But it cannot mean a lifeless, motionless 
assistance with the continuous strain on the mind of 
not being allowed to pay attention to what is going on. 
Even passive assistance is a human act, and that not only 
in specie, but in individuo, and involves a double duty, 
viz., to appear and conduct oneself like a gentleman, and 
not to take any part in the service that might reason¬ 
ably be construed as approval of heretical worship. 

A few points which the Ordinaries are sometimes asked 


NON-CATHOLIC SERVICES 


32/ 


to decide may here be mentioned as decided by the Holy 
Office. 

Assistance of Catholics at non-Catholic Services 

Catholics are, as a rule not allowed to assist at baptisms, 
sermons, marriages of non-Catholics (heretics or schis¬ 
matics), and are absolutely forbidden to act as sponsors 
for non-Catholic children who are baptized by heretics. 

As a rule, Catholics are not allowed to assist at mar¬ 
riages of non-Catholics; but they may be suffered to 
assist civilis officii causa, provided all participation in 
the sacred rites is avoided and there is no danger of 
scandal. 

This certainly means that Catholics cannot licitly 
act as witnesses to non-Catholic marriages, contracted 
before a non-Catholic minister, as such, i. e., as sacris 
addictus. In marriages performed before a justice of 
the peace or a non-Catholic minister acting as a civil 
officer, there can hardly be any participatio in sacris. 

Assistance of non-Catholics at Catholic Services 

Non-Catholics must not be invited to sing in Catholic 
churches. A non-Catholic organist is tolerated if no 
Catholic can be obtained. Non-Catholics are not al¬ 
lowed to act as sponsors at Catholic baptisms, either 
alone or together with Catholics, by proxy or in person. 

Non-Catholics may be invited to Catholic marriages, 
provided there is no participatio in sacris, and scandal 
is avoided. This again certainly implies that non- 
Catholics cannot act as witnesses at Catholic marriages. 

Prayers and devotions are not to be permitted in 
churches and oratories without previous revision by, and 
express permission of, the local Ordinary, who shall re- 


328 POWERS CONCERNING WORSHIP 


port difficult cases to the Apostolic See. The local 
Ordinaries cannot approve new litanies which are to be 
publicly recited. A bishop must and may revise all kinds 
of devotions, and if there is doubt whether prayers or 
invocations comply with the dogmatic and traditional 
requirements, he shall refer the matter to the Holy Office, 
which, if the doubt is purely ritual, shall report to the S. 
Congregation of Rites. 

The local Ordinaries should carefully see to it (i) that 
the regulations laid down in the sacred canons on divine 
worship are carefully observed; especially (2) that no 
superstitious practices are introduced into public or 
private divine worship or into the daily life of the faith¬ 
ful; (3) that nothing is admitted which is contrary to 
faith or ecclesiastical tradition, or which savors of shame¬ 
ful money-making. 

Religious, no matter how exempt they be, must abide 
by the laws which the local Ordinary makes for his 
territory. The same Ordinary is entitled to visit their 
churches and public oratories for the purposes of this 
prescription. 

A distinguished place or seat in the church may be 
reserved for civil magistrates, according to dignity and 
rank. However, the liturgical laws must never be dis¬ 
regarded. These laws are summed up in the Cceremoniale 
Episcoporum, where we read that the seats reserved 
for nobles and illustrious laymen, magistrates and princes, 
no matter whether of the highest or the lowest rank, 
should be placed outside the sanctuary. 

No Catholic may, without the express consent of the 
diocesan Ordinary, have a seat reserved for himself and 
his family in church, and the Ordinary shall not give 
his consent unless he is certain that the rest of the 
faithful can be conveniently seated. 


DIVINE WORSHIP 


329 

All these concessions contain the tacit condition that 
the Ordinary may revoke them for a just cause and 
that no prescription confers a permanent right. For lay¬ 
men, even by paying pew-rent for a number of years, 
acquire no personal right to pews or seats. 

Lascivious or improper music, whether accompanied by 
the organ or other instruments, or rendered vocally, must 
be eliminated from the churches, and the liturgical laws 
concerning sacred music must be observed. 

The Church has never condemned polyphony, which 
came into being in the fourteenth century, when the Plain 
Chant commenced to decline. 

Religious women, if their constitutions or the liturgical 
laws and the local Ordinary permit them to do so, may 
sing in their own churches or public oratories, but only 
in a place where they cannot be seen by the public. 

We do not intend to dwell upon church music, but one 
additional remark may be allowed. If the Gregorian 
Chant is to become the chant of the Church, its promoters 
should spare the Catholic world the sight of unseemly 
wrangling over its authentic or original rendition. They 
should be satisfied with the approved “Gloria’s” and “Ite 
Missa est” as given in the latest edition of the Missal, 
and not try to force fifteen different ones down unmusical 
throats or into bad ear drums. 

Worship of the Blessed Sacrament 

The Holy Eucharist must be kept in the cathedral 
church, in the main church of an abbatial or prelatical 
territory nullius, of a vicariate and prefecture Apostolic, 
in every parish and quasi-parish church, and in every 
church adjoining the house of exempt religious, either 
male or female. 


330 POWERS CONCERNING WORSHIP 


With the permission of the local Ordinary the Holy 
Eucharist may be kept in collegiate churches, in the 
principal public or semi-public oratories of charitable or 
religious houses, as well as in those of ecclesiastical col¬ 
leges which are in charge of either the secular or religious 
clergy. 

To keep the Blessed Sacrament in any other church 
or oratory besides those mentioned requires a papal indult. 
The local Ordinary may grant this permission only for 
churches and public oratories, for a just cause, and per 
modum actus. 

In religious houses or charitable institutions the Holy 
Eucharist may be kept only in the church or principal 
oratory, and nowhere else; nuns are not allowed to keep 
it within the choir or convent enclosure. Every privi¬ 
lege to the contrary is revoked by the Code. 

In cathedral, collegiate, and conventual churches in 
which the choir functions are held at the main altar, the 
Blessed Sacrament may, as a rule, be kept in another 
chapel or on another than the high altar, in order not to 
interfere with the services. 

For any weighty reason which the Ordinary deems 
sufficient, it is permitted to keep the Blessed Sacrament 
away from the altar at night, in a secure and decent place, 
but always on a corporal. 

At least one lamp must burn day and night before the 
tabernacle in which the Blessed Sacrament is kept. For 
this lamp, olive oil or beeswax must be used; if no olive 
oil is available, other oils may be used, according to the 
prudent judgment of the Ordinary, but they should, if 
possible, be vegetable oils. 

The consecrated hosts reserved for the communion of 
the faithful or for the exposition of the Blessed Sacra¬ 
ment must be fresh and should be frequently renewed, 


THE BLESSED SACRAMENT 


33i 


the old ones being duly consumed, so that there is no 
danger of corruption. Upon this matter the instructions 
given by the local Ordinaries should be scrupulously ob¬ 
served. 


Exposition of the Blessed Sacrament 

Private exposition of the Blessed Sacrament, i. e., with 
the ciborium, may be held for any reasonable cause 
without the permission of the Ordinary in churches and 
oratories in which the Blessed Sacrament is lawfully kept. 

Public exposition, i. e., with the ostensorium or mon¬ 
strance, may be held in all churches on the feast of Cor¬ 
pus Christi and every day within its octave, at Mass and 
Vespers, but not on other occasions except for a just and 
weighty reason, especially of a public character, and with 
the permission of the diocesan Ordinary, which is re¬ 
quired also for the churches of exempt religious. We 
cannot see the public character in cases where there are 
only a few religious gathered, no matter how mitigated 
a cause may be accepted. 

The Forty Hours’ Devotion should be held every year, 
on the appointed days, with the consent of the local Or¬ 
dinary, in all parochial and other churches in which the 
Blessed Sacrament is habitually kept, and with the great¬ 
est possible solemnity. When special circumstances do 
not permit the exposition of the Blessed Sacrament 
except with great inconvenience or danger of irreverence, 
the local Ordinary shall see that it is exposed solemnly 
at least for a number of consecutive hours on stated days. 

Worship of Saints, Sacred Images, and Relics 

Only those servants of God who are counted among 
the Saints and Blessed by the authority of the Church 
may be publicly worshipped. 


332 POWERS CONCERNING WORSHIP 


To those whose names have been canonically inserted 
in the catalogue of Saints is due the worship called dulia. 
Saints may be worshipped everywhere and by any act of 
dulia, but the Blessed ( Beati ) may be worshipped only 
in the places and manner expressly granted by the Roman 
Pontiff. 

It is praiseworthy that nations, dioceses, provinces, con¬ 
fraternities, religious institutes, places and corporations 
choose patron saints with the approval of the Apostolic 
See. But Beati can be chosen patrons only with a 
special indult of the same Holy See. 

The law strictly forbids the exhibition of unusual im¬ 
ages in churches or sacred places, even of exempt religious, 
unless the approval of the local Ordinary has been 
obtained. 

The Ordinaries shall never allow any sacred images 
to be publicly exhibited to the veneration of the faith¬ 
ful, unless these images are in keeping with the approved 
usage of the Church. 

The Ordinaries shall never permit the exhibition, in 
churches or sacred places, of images which offend against 
dogma, decency, propriety, or which are apt to lead the 
ignorant into error. 

The solemn blessing of images which are to be ex¬ 
hibited for public veneration is reserved to the Ordinary, 
who may, however, delegate this function to any priest. 
There is no rule or law prescribing the blessing of 
images. 

Images which possess great value by reason of their 
antiquity, artistic finish, or the veneration given to them, 
and which have been exhibited to the worship of the faith¬ 
ful in churches and public oratories, when in need of re¬ 
pairs, must not be restored without the written consent 


THE BLESSED SACRAMENT 


333 

of the Ordinary, who shall seek advice from wise and 
experienced men before he grants such a permission. 

Important relics (insignes reliquiae) are the entire 
body, head, arm, forearm, heart, tongue, hand, leg of a 
saint or blessed person, or that part of his body in which 
a martyr suffered death, but the relic must be entire 
and not merely a small particle. 

Important relics of saints and blessed persons may not 
be preserved in private homes and oratories without the 
express permission of the local Ordinary. Minor relics, 
on the other hand, may be kept in private houses and rev¬ 
erently carried about by the faithful. 

Only genuine relics may be exhibited for public venera¬ 
tion in churches, including those of exempt religious. 
The genuineness of a relic is ascertained by an authentic 
document, issued either by a cardinal, or by the local Or¬ 
dinary, or by a clergyman who has obtained an Apostolic 
indult authorizing him to authenticate relics. 

The vicar-general needs a special mandate to issue 
such a document. 

Can. 1284 obliges the local Ordinaries to withdraw 
from public veneration all relics of which he knows for 
certain that they are not genuine. 

Titular bishops are not empowered to authenticate rel¬ 
ics. This privilege is expressly reserved to cardinals and 
Ordinaries, in the strict sense of the term, though vicars 
capitular or administrators are not excluded. Relics 
which are certainly spurious, the Ordinaries should 
withdraw and destroy. 

The public discussion of the authenticity of relics 
should be avoided and may be forbidden by the local Or¬ 
dinaries if the argument rests on mere conjectures, prob¬ 
abilities or prejudices, and if the methods employed are 


334 POWERS CONCERNING WORSHIP 


apt to cast ridicule and contempt on sacred relics or their 
worship. 

Relics of the true Cross enclosed in the pectoral 
cross of a bishop, after his death belong to his cathe¬ 
dral church, which shall hand them to the bishop’s 
successor. If the deceased bishop ruled several dioceses, 
the relics pass to the cathedral church of the one in which 
he died; if he dies outside the diocese, the relics belong 
to the cathedral church of the diocese in which he passed 
away. 

It is forbidden to sell relics, and hence local ordinaries, 
rural deans, pastors, and all those who have charge of 
souls shall take proper precautions lest sacred relics, espe¬ 
cially relics of the Holy Cross, be sold on the occasion of 
hereditary transfer or at public auctions, and they shall 
see to it that such relics do not pass into the hands of 
non-Catholics. 


Sacred Processions 

Sacred processions are solemn invocations made by 
the faithful people marching in an orderly manner, un¬ 
der the leadership of the clergy, from one sacred place to 
another, for the purpose of arousing devotion, praising 
God, thanking Him, and imploring His help. 

Ordinary processions are those held on stated days 
throughout the year, according to the sacred liturgy or the 
custom of the churches; extraordinary processions are 
those held for some public cause on other days. 

Unless there be an immemorial custom to the contrary, 
or unless in the prudent judgment of the bishop local 
circumstances demand a deviation from the rule, only 
one solemn procession is permitted in the same place 
through the public streets on the feast of Corpus Christi. 


SACRA SUPELLEX 


335 


This procession is to be arranged and led by the more 
prominent church of the respective city or town, and 
all the clergy and male religious orders, including the 
exempt, as well as the confraternities of laymen, must 
attend it. Only those regulars who perpetually live in 
strict enclosure, or dwell 3000 paces from the city, are 
excused from participation. 

The other parishes and churches, including those which 
are in charge of regulars, may have their own pro¬ 
cessions outside the church during the Octave of Corpus 
Christi; but the local Ordinary should assign the day, 
the hour and the route for each parish. 

The local Ordinary, after having heard the advice of 
his cathedral chapter, may for a public cause order ex¬ 
traordinary processions, which, like the customary and 
ordinary ones, must be attended by those mentioned in 
can. 1291, § 1. 

With the exception of the Octave of Corpus Christi, 
religious, even though exempt, are not allowed to hold 
processions outside their churches and cloisters without 
the permission of the local Ordinary. 

Neither the pastor nor anyone else can introduce new, 
or transfer or abolish the customary processions without 
the permission of the local Ordinary. 

The Ordinaries shall take care that any abuses that 
may have crept in are eliminated, that the processions 
proceed in an orderly manner, with the modesty and 
reverence suited to such pious and religious acts. 

Sacra Supellex 

With the exception of rings and pectoral crosses (the 
relics of the holy Cross should be taken out and given 
to the successor), all articles of a bishop’s sacra supellex 





336 POWERS CONCERNING WORSHIP 

belong by law to the deceased prelate’s cathedral church, 
with the exception, however, of such sacred appurte¬ 
nances ( omnibus utensilibus) which were bought by the 
deceased bishop with his own money and such as have 
not passed into the possession of the Church. How¬ 
ever, for both of these two kinds of sacra supellex there 
must be legal proof that the money wherewith they were 
purchased was not church money and that the ownership 
was not acquired by the Church. This proof should be 
procured by a properly drawn up inventory. If the 
deceased bishop ruled more than one diocese, each of 
which has its own cathedral church, and if he made the 
required inventory, it will be easy to decide which of 
the cathedral churches furnished the money for the sacra 
supellex. If only one of them furnished the money, 
that one has an exclusive claim to the articles in question. 
If two or three dioceses contributed to the purchase, there 
are two possibilities: If no separate accounts are kept, 
but all revenues go to constitute the income of the bishop 
(mensa episcopalis) , then the sacra supellex accrues to 
the cathedral churches in equal shares. But if the differ¬ 
ent dioceses keep separate and distinct accounts of their 
revenues, then the sacra supellex is to be divided and ap¬ 
portioned according to the salary, cathedraticum, etc., the 
bishop received from each diocese, and according to the 
length of time he governed each diocese. 

Cardinals, residential bishops, and all other clerical 
beneficiaries are in duty bound to draw up a last will or 
other instrument, in a form acknowledged as valid by the 
civil law, in order that the regulations laid down in can. 
1298-1300 may be made effective in the civil courts. 
For this purpose they shall in due time and legal form 
appoint some person of good character who, at the ap¬ 
proach of their death, shall take temporary possession 


SACRA SUPELLEX 


337 


not only of their sacra supellex, but also of books, docu¬ 
ments, and other objects belonging to the Church and 
found in their residence, and deliver them to the lawful 
claimants. 

The cathedral church must furnish the sacra supellex 
and everything else that may be required for the cele¬ 
bration of Mass and other pontifical functions free of 
charge to the bishop, no matter whether he celebrates 
privately or solemnly, in the cathedral church or in any 
other church of his episcopal city or its suburbs. Hence 
if the bishop celebrates within the city limits or its suburbs 
he may take the pontifical vestments along with him, 
and the cathedral church cannot object. But this holds 
only for the episcopal city, not for the whole diocese. 

If a church is very poor, the Ordinary may permit 
that a moderate fee is paid by the priests who say Mass 
there for their own convenience, to defray the expense of 
the sacred utensils and other things required for the 
celebration of Mass. The S. Congregation has decided 
that beneficiaries who are compelled to say Mass in a 
church not their own, should contribute something for 
the candles, bread, and wine, and for the use of the vest¬ 
ments. 

The bishop, but not the vicar-capitular, nor the vicar- 
general without a special mandate, may fix the amount 
of said offering, and no one, not even exempt religious, 
may charge more. 

The bishop should fix this fee for the whole diocese 
at the diocesan synod, or else with the advice of his 
chapter or diocesan consultors. 

The sacra supellex should be blessed before use, and it 
may be blessed by the following: 

i. By all cardinals and bishops (hence also by titular 
bishops) ; 


338 POWERS CONCERNING WORSHIP 

2. By local Ordinaries not endowed with the episcopal 
character for the churches and oratories of their respect¬ 
ive territory; 

3. By the pastors for the churches and oratories situ¬ 
ated within their parishes, and the rectors of churches 
for their own churches; 

4. By priests delegated by the local Ordinary, within 
the limits of their delegation and the jurisdiction of the 
delegans; 

5. By religious superiors and priests of the same insti¬ 
tute delegated by the superior for their own churches 
and oratories and those of nuns subject to them. 

An article of sacra sup die x that has been blessed 
or consecrated, loses its blessing or consecration: 

(1) If it is so badly damaged or changed that its form 
is lost and it becomes unfit for its proper purpose; 

(2) If it has been used for unsuitable purposes or ex¬ 
hibited for public sale. 

Vows and Oaths 

A vow is a free promise deliberately made to God con¬ 
cerning something possible and better; it obliges by 
reason of the virtue of religion. 

A vow is public when it is accepted by a lawful ec¬ 
clesiastical superior in the name of the Church; all vows 
not so accepted are private. 

A vow is reserved if dispensation from it can be 
granted only by the Apostolic See. 

The only private vows which are reserved to the Apos¬ 
tolic See are that of perfect and perpetual chastity and 
that of entering a religious order with solemn vows, pro¬ 
vided they are made unconditionally and after the eigh¬ 
teenth year of age has been completed. 


VOWS AND OATHS 


339 


Ecclesiastical superiors, the pope, bishops, religious 
superiors, also in virtue of jurisdiction, may suspend the 
obligation of vows that are detrimental to the welfare of 
the Church, either universal or particular, or of their 
subjects. This holds good also of vows made before the 
vovens became dependent on the respective superior. 

Vows that are not reserved may be dispensed from, 
for a just reason, provided the dispensation does not 
trench on rights acquired by a third person. Such dis¬ 
pensations may be granted: 

1. By the local Ordinary to his own subjects as well 
as to peregrini; 

2. By religious superiors of exempt clerical institutes 
to all those mentioned in can. 514, § 1 ; 

3. By those to whom the power of dispensing has been 
granted by the Apostolic See. 

Any good work promised in a non-reserved vow may 
be changed by the vovens into one better or equally good; 
but only those who may dispense according to canon 1313, 
can change it into a lesser work. 

An oath, that is, the invocation of the Divine Name 
in testimony of the truth, cannot be taken except with 
truth, judgment, and justice. 

Oaths demanded or admitted by Canon Law cannot 
validly be taken by proxy. 

Those who are empowered to annul, dispense from, or 
commute vows, have the same power with regard to prom¬ 
issory oaths; but in case the dispensation involves a preju¬ 
dice to a third person, who refuses to condone the obliga¬ 
tion, the Holy See alone can dispense on account of the 
utility or necessity of the Church. 


340 


THE TEACHING OFFICE 


SECTION VIII 

THE TEACHING OFFICE 

(Can. 1322-1408) 

Christ has entrusted to the Church the deposit of faith, 
in order that, by the continual assistance of the Holy 
Ghost, she might preserve the revealed doctrine holily 
and expound it faithfully. 

The Church, independently of the civil authority, pos¬ 
sesses the right of teaching all nations. Correlative to this 
right is the duty of teaching men, and on their part the 
duty of obtaining knowledge of the truth and embracing 
the true Church of God. 

The universal and ordinary magisterium consists 
of the entire episcopate, according to the constitution 
and order defined by Christ, i. e., all the bishops of 
the universal Church,—dependently on the Roman 
Pontiff. 

The bishops, independently of the Pope, are true 
teachers of the flock confided to them. But neither singly 
nor in council do they share the infallibility which is 
their prerogative when acting as the ordinary teaching 
body of the Church under the leadership of the Sovereign 
Pontiff, or when united under the same at a general 
council. 

To hold disputations and conferences with non- 
Catliolics, especially in public, requires the special per¬ 
mission of the Holy See, or, in urgent cases, of the local 
Ordinary. 

The bishops, in virtue of their jurisdiction, are obliged 


CATECHETICAL INSTRUCTIONS 


34i 


to preach the Catholic faith, each within his own district 
or diocese. This duty they must perform personally, 
unless they are lawfully prevented. For since they are, 
as a rule, chosen for their personal qualities ( de industria 
personae), they are in conscience bound to break the 
spiritual bread for their flocks. 

Some of the lawful reasons which may prevent an 
Ordinary from fulfilling this duty, are mentioned in a 
papal decretal. They are: manifold pastoral or episco¬ 
pal occupations, such as the diocesan visitation, attend¬ 
ance at councils or synods, bodily infirmity, hostile in¬ 
vasions, etc. 

No one is allowed to preach the word of God unless 
he has received the missio canonica from his legitimate 
superior. The missio canonica may be given either by 
means of a special faculty, or by virtue of an office to 
which the right of preaching is attached by ecclesiastical 
law. 


Catechetical Instructions 

Canon 336 says that the bishops are strictly obliged 
to see to it that the important duty of imparting cate¬ 
chetical instructions, as outlined by the Code, is not ne¬ 
glected by those who are obliged to perform it, viz., above 
all the pastors. 

Priests and other clerics, who are not lawfully pre¬ 
vented, must assist their pastor in this most holy work, 
and may be punished by the Ordinary if they fail to 
do so. 

If the local Ordinary is convinced that the help of re¬ 
ligious is required for the catechetical instruction of his 
people, he may call upon the religious superiors, including 
those of exempt orders, and they are obliged to comply 



342 


THE TEACHING OFFICE 


with his demands, either personally or through their sub¬ 
jects, especially in their own churches, provided the regu¬ 
lar discipline does not suffer. 

Local Ordinaries are entitled to issue decrees with 
reference to the instructions of the people in Christian 
doctrine, and these regulations must be obeyed also by 
exempt religious, whenever they impart religious instruc¬ 
tions to anyone not possessed of the privilege of exemp¬ 
tion. 


Preaching 

The secular clergy as well as non-exempt religious 
receive the faculty of preaching from the local Ordinary 
for his respective diocese. 

Religious of a clerical order obtain the faculty of 
preaching from their own superiors, according to their 
constitutions, in case they preach to exempt religious of 
their own order or to those persons mentioned in can. 

514. § i- 

If sermons are to be delivered before others, including 
nuns subject to regular prelates, the faculty of preaching 
must be granted by the Ordinary of the diocese; and 
the preacher who addresses exempt nuns must also have 
the permission of the regular superior to whom they 
are subject. Preaching to nuns with solemn vows 
( moniales ) is done at the grate, and the preacher is not 
obliged or permitted to enter the enclosure, which is here 
understood to be the papal clausura. 

To preach for members of a religious lay institute, 
for instance, the Christian Brothers, even though they 
may enjoy exemption, a priest must obtain faculties from 
the local Ordinary in whose diocese the religious house 
is located. However, he cannot make use of his faculty 


PREACHING 


343 


unless the religious superior of the institute gives his 
consent . 

Can. 1339 commands the local Ordinaries not to refuse 
the faculty of preaching to religious who are presented 
by their superiors, nor to withdraw it from them without 
weighty reasons. They should refrain especially from 
refusing or withdrawing the faculty from all religious 
of one house at the same time, provided, of course, at 
least the one or other was fit to exercise it. 

Religious, in order to make lawful use of the faculty 
granted by the Ordinary, must in addition obtain per¬ 
mission from their respective superiors . 

Local Ordinaries as well as religious superiors are 
seriously admonished to grant the faculty or permission 
to preach only to such as have passed an examination 
with regard to their moral standing and sufficiency of 
knowledge, according to the rule laid down in can. 

877, § 1. 

If a preacher shows that he lacks the necessary requi¬ 
sites after the faculty or permission to preach has been 
granted to him, the Ordinary and the superior must with¬ 
draw it. If a doubt arises as to his knowledge, they 
should endeavor to disperse it by gathering the necessary 
information, and may also subject him to a new examina¬ 
tion. 

Priests from other dioceses invited to preach, no 
matter whether they be seculars or religious, exempt, or 
non-exempt, provided only that the hearers are not exempt 
religious, need the faculty of the Ordinary in whose 
diocese they arc to preach. 

Pastors must,, therefore, ask for the permission in good 
time, if the preaching is to be done in their own church, 
or in one subj ect to them, as may be the case when a 
pastor governs two parishes, or one with several missions. 


344 


THE TEACHING OFFICE 


The same obligation is incumbent on rectors with regard 
to churches not subject to the pastor, and on the first 
dignitary (provost or dean), who has to ask the consent 
of the chapter before applying to the bishop for a faculty; 
also on chaplains or directors of confraternities if the 
preaching is to be done in their churches. 

If the parish church is at the same time a capitular 
or confraternity church, the obligation of asking for per¬ 
mission for a strange priest to preach devolves on the one 
who has the right to perform the sacred functions. 

Only priests and deacons should be given the faculty 
of preaching, and no other clerics should be allowed to 
preach, except in particular cases and for a cause which 
the Ordinary deems reasonable. 

Laymen, even though they be religious, are forbidden 
to preach in church. 

The local Ordinaries have the right to preach in every 
church of their diocese, including the churches of exempt 
religious. 

With the exception of large cities, to which the law 
does not apply, the bishop may forbid sermons to be 
delivered to the faithful in other churches of a place in 
which he or another by his command is preaching at 
the same time. 

Pastors are in duty bound to preach the word of God 
in the customary manner on all Sundays and holydays 
of obligation, especially during the Mass that is most 
largely attended. 

This obligation is personal and cannot be habitually 
committed to another, except for reasons recognized as 
sufficient by the Ordinary. 

The Ordinary may allow the sermon to be omitted on 
solemn feast-days, and, for good reasons, also on the 
one or other Sunday. 


SEMINARIES 


345 


The Church desires that in all churches and public ora¬ 
tories, even though they are not parish churches, the 
Gospel or some part of Christian Doctrine should be 
expounded during the Masses that are attended by the 
faithful on holydays of obligation. If the Ordinary is¬ 
sues instructions to that effect, all priests, secular as well 
as religious, including those who are exempt, are bound 
to obey. 

The Ordinaries should see to it that during Lent, and 
if expedient also during Advent, sermons are delivered 
more frequently in cathedral and parish churches. 

Canons and other members of a chapter are obliged 
to attend these sermons, if held immediately after choir 
service, unless they are lawfully prevented; and the 
Ordinary, if he wishes, may compel them to attend under 
penalties. 

Ordinaries shall see to it that the pastors arrange a 
mission for their flocks at least once every ten years. 

Pastors, including religious, must abide by the regula¬ 
tions of the local Ordinaries in this matter. 

The non-Catholics living in a diocese or parish are 
recommended to the benevolent attention of the bishop 
and the pastors, who should try to devise effective means 
and ways of bringing them into the one true fold. 

In all other territories the care for non-Catholics is 
reserved to the Holy See. 

Seminaries 

A seminary may be broadly defined as a school either 
remotely or proximately destined for the preparation of 
candidates for the sacred ministry, especially the priest¬ 
hood. 

A diocesan seminary is a seminary under the control 



346 


THE TEACHING OFFICE 


of the local Ordinary, an interdiocesan, one under the 
control, generally in solidum, of all the bishops who send 
their students there, although interdiocesan may only mean 
that the control is entrusted to the local Ordinary, whilst 
other bishops are entitled to send their candidates. A 
provincial seminary is one subject to the bishops of an 
ecclesiastical province with the metropolitan as its head. 
A pontifical seminary is one under the immediate control 
and supervision of the Pope, who generally exercises 
this right through a delegate. 

Every diocese should have a convenient seminary or 
college selected by the bishop, where, according to the 
revenues and size of the diocese, a certain number of 
young men can be trained for the clerical state. 

In larger dioceses there should be established two 
seminaries: one as a college or petit seminaire, the other 
for the students of philosophy and theology. 

If a diocesan seminary cannot be erected, or the philo¬ 
sophical and theological courses cannot be properly given 
in one already existing, the bishop shall send his students 
to another seminary, unless there is an interdiocesan or 
provincial seminary erected by authority of the Apostolic 
See. 

When there are no endowments for the support of the 
seminary and its students, the bishop may 

1. Command the pastors and other rectors of churches, 
even though they be exempt religious, to take up collec¬ 
tions for that purpose at stated times; or 

2. Impose a seminary tax on the diocese; or, 

3. If these resources do not prove adequate, he may 
attach some simple benefices to the seminary. 

The bishop shall, with due respect to the particular 
regulations given by the Holy See, decide what is neces¬ 
sary and profitable for the proper administration, govern- 


SEMINARIES 


347 

ment, and progress of the seminary, and enforce his 
regulations. 

Above all the bishop shall visit the seminary fre¬ 
quently, watch over the mental and moral training of 
the students, and, especially on the occasion of sacred 
ordinations, acquaint himself with the character, piety, 
vocation, and progress of the pupils. 

Each seminary must have its statutes, approved by 
the bishop, in which the rules for the conduct of students 
and teachers are laid down. 

Interdiocesan or provincial seminaries are entirely 
governed by statutes issued by the Holy See. 

Every diocesan seminary must have two boards, one 
for discipline, the other for the administration of its tem¬ 
poral affairs. 

The bishop is bound to ask the advice of these boards 
in important matters. 

The bishop shall see to it that the students of the sem¬ 
inary : 

1. Recite their morning and evening prayers in com¬ 
mon, make a short daily meditation, and assist at Mass; 

2. Go to confession at least once a week and frequently 
receive holy Communion with proper devotion; 

3. Assist at solemn Mass and Vespers on Sundays and 
holydays of obligation, serve at the altar, and perform 
the sacred ceremonies, especially in the cathedral church, 
provided the bishop thinks this can be done without dis¬ 
advantage to discipline and study; 

4. Make a retreat for several successive days once a 
year. 

5. Attend a spiritual lecture, which may be followed 
by a pious exhortation, at least once a week. 

The seminary is exempt from the jurisdiction of the 
local pastor, whose place is taken by the rector or his 




348 


THE TEACHING OFFICE 


delegate for all who live in the seminary in all things 
except marriage and matters concerning which the Holy 
See has provided differently. But the rule laid down in 
can. 891, that the rector should not habitually hear the con¬ 
fessions of boarding pupils, must not be set aside. 

The rector of the seminary and all other officials sub¬ 
ject to his authority shall take care that the students 
obey the statutes approved by the bishop as well as follow 
the prescribed plan of studies , and that they are imbued 
with the true ecclesiastical spirit. 

Schools 

In every elementary school religious instruction should 
be given to the children according to their age. 

Youiths who frequent the secondary or higher schools 
should be given fuller instructions in Christian doctrine, 
and the local Ordinaries should see to it that these instruc¬ 
tions are imparted by zealous and learned priests. 

Such fuller instructions are contained in the larger cate¬ 
chism as well as the so-called evidences of religion, which 
should be imparted in such a way that they may be easily 
grasped and assimilated by the pupils. 

Catholic children should not frequent non-Catholic, 
neutral, or mixed schools, i. e. } such as are open to non- 
Catholics. It is for the local Ordinary to decide, accord¬ 
ing to the instructions of the Apostolic See, in what cir¬ 
cumstances and with what precautions attendance at such 
schools may be tolerated. 

Duly created doctors are entitled to wear, outside of 
ecclesiastical functions, a ring studded with a gem and 
the doctor’s biretta, and all other things being equal, 
doctors and licentiates should be preferred in appoint¬ 
ments to ecclesiastical offices and benefices. 


CENSORSHIP OF BOOKS 


349 


Where there are no Catholic schools, the church author¬ 
ities, especially the local Ordinary, should establish such. 

Catholic universities should be founded in provinces or 
countries where the existing* universities are not imbued 
with Catholic teaching and feeling. 

The faithful should not omit to lend their aid, accord¬ 
ing to their ability, to the establishment and support of 
Catholic schools. 

It is desirable that the local Ordinaries should, with pru¬ 
dent judgment, send clerical students who excel in piety 
and talent, to a university or faculty either founded or 
approved by the Church, where they may complete their 
studies, especially in philosophy, theology, and Canon 
Law, and obtain academic degrees. 

The religious instruction of the young in all schools 
is subject to the authority and inspection of the Church . 

The local Ordinaries have the right and duty to watch 
that nothing contrary to faith and morals is taught or 
done in the schools of their territory. 

The local Ordinaries also have the right to approve 
teachers and text-books of religion and to demand that 
teachers or books offensive to faith and morals be re¬ 
moved. 

The local Ordinaries are entitled, either personally 
or through a delegate, to inspect any school, oratory, asy¬ 
lum, orphanage, etc., in all things concerning religious 
and moral education. This right of inspection includes 
the schools of religious, with the sole exception of purely 
internal schools for the members of exempt religious 
institutes. 

Censorship of Books 

The Church has the right to demand that the faithful 
shall not publish books which she has not previously ap- 


350 


THE TEACHING OFFICE 


proved, and for a just reason to forbid books published 
by whomsoever. 

In this title on previous censorship, the term books 
comprehends newspapers and other periodical publica¬ 
tions. 

The following books, even though published by lay¬ 
men, must be submitted to the ecclesiastical censure: 

a) The Books of Holy Writ with annotations and com¬ 
mentaries. 

b) Books treating of Holy Scripture, sacred theology, 
Church history, Canon Law, theodicy, ethics, and other 
religious and moral disciplines. 

c) Large and small prayer-books and devotional, cate¬ 
chetical, moral, ascetical, mystical, and the like books and 
pamphlets, even though they seem to foster piety. To 
this class belong Bible histories, missals with vernacular 
translation, catechisms, the lives of Saints, the Imitation 
of Christ, and similar books. 

d) All writings which contain anything that particularly 
concerns religion and morals. 

e) Sacred images, no matter how printed, with or with¬ 
out prayers. 

The permission to publish books and images may be 
granted by the local Ordinary of the author, or by the 
local Ordinary of the place of publication, or, finally, 
by the local Ordinary of the place where the books, 
etc., are printed. However, if any one of these Or¬ 
dinaries refuses the imprimatur, the author is not al¬ 
lowed to ask it of another, unless the latter has been in¬ 
formed of the refusal. 

Religious must obtain the permission of their superiors 
before applying for the episcopal imprimatur. 

The secular clergy without the consent of their Ordi¬ 
nary, and religious without the permission of their higher 


CENSORSHIP OF BOOKS 


35i 


superior and of the local Ordinary, may not even publish 
books on secular subjects, or write for newspapers or 
other periodical publications, or serve as editors of such. 

Episcopal permission is required when clerics wish to 
contribute to periodical publications or desire to act as 
managers or editors of such publications as diaria, folia, 
libclli periodici. Diaria are newspapers, daily, weekly, 
or biweekly. Folia are publications published more or 
less irregularly, of undetermined size or number of pages; 
be they leaflets or brochures. Libclli periodici are quar¬ 
terly, monthly, fortnightly, weekly, etc., magazines or 
reviews. 

Not even Catholic laymen —much less clergymen and 
religious—may write for newspapers, pamphlets or other 
periodical publications which are wont to attack the Cath¬ 
olic faith or morals. An exception to this rule may be 
made only for a just and valid reason, acknowledged 
to be such by the local Ordinary. 

Books, summaries, booklets, leaflets, etc., containing 
grants of indulgences, may not be published without the 
permission of the local Ordinary. The express permis¬ 
sion of the Holy See is required for publishing, in any 
language, authentic collections of prayers and good works 
enriched with indulgences by the Apostolic See. 

Can. 1390 concerns the publication of liturgical books, 
or parts thereof, and litanies approved by the Holy See. 
Reprints of these must agree with the approved text, and 
the Ordinary of the place where they are printed or pub¬ 
lished must testify to such conformity. 

No translations of Holy Scripture into the vernacular 
may be printed unless they have been approved by the 
Apostolic See or the bishops, and provided with notes 
drawn chiefly from the Holy Fathers and learned and 
orthodox writers. 


352 


THE TEACHING OFFICE 


Every diocese must have officially appointed censors 
for the examination of writings that are to be published. 
Ex officio means that there should be a regular censor, 
not merely one chosen for an emergency. The diocesan 
censors should be named in the Catholic Directory. 

The examiners, in discharging their office, should set 
aside all human respect and be guided solely by the dog¬ 
matic teaching of the Church as contained in the decrees 
of the general councils, in papal constitutions and de¬ 
cisions, and in the consent of approved doctors. This 
does not mean, however, that any opinion or system toler¬ 
ated by the Church is to be condemned because it does not 
happen to fit in with the individual views of the censor. 

The imprimatur should be given in writing and be 
placed either in the beginning or at the end of the book, 
leaflet or image, together with the name of the grantor, 
and the place and date of the grant. It is strongly ad¬ 
visable to print the year of publication on the title page 
of every book—a practice which is neglected by some 
publishers. 

If the imprimatur is denied, the reasons should be re¬ 
vealed to the author upon demand, unless a weighty mo¬ 
tive counsels a contrary procedure. 

Prohibition of Boohs 

The right and duty to forbid books for a just cause be¬ 
longs to the supreme ecclesiastical authority for the whole 
Church, and to particular councils and local Ordinaries 
for their respective subjects. 

Recourse from a prohibition may be had to the Apos¬ 
tolic See, but only in devolutivo. 

Abbots of autonomous monasteries and superiors gen - 
eral of exempt clerical institutes may, for just reasons, 


PROHIBITION OF BOOKS 


353 

forbid books to their subjects; but they must proceed to¬ 
gether with their chapter or consultors. 

The local Ordinaries, either personally, or, if necessary, 
through capable priests, should watch the books that 
are published and sold in their territory. This is the 
duty especially of the so-called vigilance commissions pre¬ 
scribed by Pius X against Modernism. Although the 
Code does not mention this law, the Holy Office has de¬ 
cided that it remains in force until the Apostolic See or¬ 
ders differently. 

A forbidden book may not be republished until after it 
has been corrected and the one who forbade it, or his su¬ 
perior or successor, has granted permission to republish 
it. 

Editions of the original text of Holy Scripture, of the 
ancient versions by non-Catholics, and translations into 
the vernacular made and published either by non-Catholics 
or by Catholics without previous censorship, are allowed 
to such as are in any way engaged in theological or biblical 
studies, provided, however, (i) that these editions are 
faithful and entire, and (2) that neither the introduction 
tr^-c the annotations attack Catholic dogmas. 

Cardinals, residential and titular bishops, and all other 
Ordinaries, under proper precautions, are not bound by 
the law of forbidden books, but they must obey the law 
of previous censorship. 


Faculties 

Ordinaries, i. e., all who go by that name in virtue of 
can. 198, § 1, may grant permission to their subjects to 
read books forbidden either by law (i. e., the Code) or 
by a special decree of the Apostolic See, but they can im¬ 
part this faculty only for individual books and in urgent 


354 


THE TEACHING OFFICE 


cases. The term “pro singulis tantum libris” means that 
each book must be distinctly mentioned by title and no 
wholesale permission may be issued. The plural form, 
singulis libris, permits the faculty to be given for more 
than one book at a time, provided they are duly specified. 

If a general faculty has been given to Ordinaries for 
the benefit of their subjects, it should be communicated 
to the latter with discretion and only for a just and rea¬ 
sonable cause. 

Ordinaries who have this general (either triennial or 
quinquennial) faculty, before granting either perpetual or 
revocable permission to their subjects, should carefully 
read the text of the grant, for it may be that some classes 
of books ( e . g., libri obscocni or books ex professo de¬ 
fending heresy and schism or undermining the founda¬ 
tions of religion) are excepted. 

Those who have obtained a papal faculty for reading 
and keeping forbidden books, are not thereby allowed to 
read and keep books proscribed by their Ordinaries un¬ 
less the indult which they have obtained contains the ex¬ 
press clause that they may read and keep books no matter 
by whom condemned. 

A license to read forbidden books does not in any way 
exempt one from the prohibition of the natural law 
against reading books which are to him a proximate oc¬ 
casion of sin. Therefore the local Ordinaries and all 
those in charge of souls should warn the faithful of the 
danger and injury caused by reading bad, especially for¬ 
bidden, books. 

The Holy Office grants to Ordinaries who ask for them 
these faculties: 

i. To give permission to read and retain forbidden 
books and magazines, even such as avowedly (ex pro - 


PROHIBITION OF BOOKS 


355 


fesso) defend heresy or schism, or endeavor to uproot 
the very foundations of religion, with the exception of 
books which treat ex professo of obscenities. However, 
there must be some reason for granting the permission, 
and, besides, there are conditions attached to the grant. 
The reasons are thus stated in the faculty: the faithful are 
supposed to be prompted to ask for this permission by 
a desire to refute these errors, or need in the perform¬ 
ance of the sacred ministry or of their office, or the pur¬ 
suit of appropriate studies. The conditions are that this 
permission be granted only to their subjects, viz,, Catho¬ 
lics under their jurisdiction by reason of domicile or 
quasi-domicile; and, although it is not expressly stated 
in the faculty, it is not too much to say that the bishops 
may make use of this faculty even if these subjects are 
outside their territory. Another condition is that the per¬ 
mission be granted for not more than three years (non 
ultra triennium) , no matter whether or not the grantees 
have made use of this permission. Lastly, the grantees 
must take proper care that these forbidden books and 
magazines do not fall into the hands of persons who 
are not permitted to read them, and, therefore, they must 
keep them in proper custody. It is evident that the Or¬ 
dinary cannot control this last-named condition, but must 
rely on the good will and diligence of the grantee; and 
for their sake it may be added that “custody” should be 
understood in a reasonable sense, i. e., these books should 
be kept under lock and key when they are not used 
for some time. 

The Holy Office also grants the following faculty—not 
mentioned in Formulary III—that students of both sexes, 
who are compelled to frequent public schools for the 
pursuit of their studies, may be given permission to 


356 


THE TEACHING OFFICE 


read and retain forbidden books which they are directed 
to peruse, as long as these circumstances last. The con¬ 
ditions are the same as stated above. 

The faculty contains the following clausula: “oneratd 
gravitcr Ordinarii ipsius conscientia super reali haruni 
omnium conditionum concursu.” This clause, which oc¬ 
curs more than once in the Code, denotes not a condition 
in the proper sense, but rather an admonition designed 
to draw the attention of the delegate to the importance 
of the affair or business which is entrusted to him. Hence 
it does not affect the validity of the grant made by the 
delegans or of the permission given by the delegate, but 
it may affect the licitness of the permission. The latter 
enters the realm of morality, and therefore the conscience 
is charged. What is conscience? Barbosa 1 defines it as 
“indicium mcnti consonum in quodam naturali iure con¬ 
sist cns.” In English it is usually defined as the practical 
dictate by which right reason here and now applies a 
principle of rectitude to a particular matter. But it 
is well to note that this practical judgment must be 
formed, not merely on one’s own or private reasoning, 
but on the basis of law and the objective facts as pre¬ 
sented by the case in question. The Ordinary, then, 
should consider the Canon Law and study the wording of 
the faculty, and also the petitioner’s needs and condition. 
In doing so he need not be troubled by scruples; the 
delegans and the law want him to make use of the faculty 
if the conditions are verified. Neither does the adverb 
gravitcr change the nature of the clause, being only in¬ 
tended to increase the attention of the delegate. Some 
authors maintain that a faculty given under this clause 
can not be subdelegated. This is denied by others, and 

x See Tractatus Varii, Clausula XXIV, ed. Lugdun. 1660, page 
374 - 


PROFESSION OF FAITH 


357 


is against the practice of the Roman Court, which, as the 
other faculties show, expressly states when subdelegation 
is permissible. 


Profession of Faith 

This must be made by all who attend a general or par¬ 
ticular council or a diocesan synod with the right to 
cast either an advisory or a decisive vote. They must 
make their profession of faith before the presiding officer 
or his delegate; the presiding officer himself, before the 
synod or council. Newly created Cardinals must make 
profession of faith before the Dean of the Sacred College, 
the first in rank among the Cardinal priests and deacons, 
and the Camerlengo of the Holy Roman Church. 

Bishops, residential as well as titular, abbots or prelates 
nullius , vicars and prefects Apostolic, must make it before 
the papal delegate; vicar capitulars before the cathedral 
chapter; those who have been promoted to a dignity or 
canonicate, before the local Ordinary or his delegate, and 
at the same time before the chapter; diocesan consultors, 
before the local Ordinary or his delegate and before 
the other consultors, who should therefore meet together 
with the bishop in a convenient place,—the cathedral or 
another church, the episcopal residence, or a priest’s house. 

The following must make profession before the local 
Ordinary or his delegate: (a) the vicar-general; 
(b) pastors and those provided with a benefice (even 
though manual only) to which the care of souls is at¬ 
tached; (c) rectors of seminaries and professors of sa¬ 
cred theology, canon law, and philosophy, at the begin¬ 
ning of each scholastic year, or at least when they assume 
office; (d) those about to be ordained subdeacons; (e) 
the censors of books, as mentioned in can. 1393; (f) 


358 


ECCLESIASTICAL BENEFICES 


all priests who are to act as confessors or preachers, 
before they are given their appointment or faculties. 

The rector of a university or faculty must make his 
profession of faith before the local Ordinary or his dele¬ 
gate. 

Superiors of clerical institutes must make their pro¬ 
fession of faith before the chapter or the superior who 
has appointed them. 

The profession of faith is to be repeated whenever 
one assumes a new office, benefice or dignity, after giv¬ 
ing up the former, even if the new office is of the same 
species. 

The Antimodernist Oath is still in force and must 
therefore be taken as before (S.O., March 22, 1918). 


SECTION IX 

ECCLESIASTICAL BENEFICES 

A benefice is a juridical entity, permantly established 
or erected by competent authority, and consisting of a 
sacred office and the right of receiving the revenues from 
the endowment attached thereto. 

The various sources of ecclesiastical endowment are: 

1) Property of any kind, movable or immovable, owned 
by the benefice itself as a juridical entity or fictitious 
person; for instance, a piece of land owned by a church, 
in which case the owner is the church, not the pastor, 
or the trustees, or the congregation; 


CANONICAL PARISHES IN U. S. 359 


2) Contributions imposed on families or corporations, 
such as tithes to be paid by the persons themselves ( deci- 
mac personates), or on goods, produce, stock ( decimae 
praediales, reales, animalium ) ; 

3) Voluntary offerings of the faithful, which belong 
to the rector of the benefice, such as pew-rent, at least in 
part, plate collections, and subscriptions; 

4) Stole fees, to be paid according to diocesan taxa¬ 
tion or lawful custom; but never manual mass stipends, 
as is clear from the text; 

5) Choir distributions, except the third part of the 
same, if the entire revenue of the benefice consists of 
such distributions. This provision is manifestly intended 
for canons. Note that these revenues must be connected 
with the office permanently {in perpetuum). 

This quality is styled by canonists obiectiva pcrpe- 
tuitas and constitutes an essential element of a benefice, 
but no longer of a parish. 

Are there canonical parishes or benefices in the United 
States? This question has been settled by the S. C. 
Consistorialis and by the letter sent to our bishops by 
the Apostolic Delegate, Archbishop (now Cardinal) 
Bonzano, Nov. 10th, 1922. 

The substance of the Declaratio of Aug. 1, 1919 
(A. Ap. S., XI, 346 ) is: Wherever the following three 
conditions are verified, there is a canonical parish, no 
matter whether its rector is removable or irremovable: 
(1) fixed boundaries, (2) parochial residence, (3) en¬ 
dowment or at least a solid reason to expect sufficient 
support to be forthcoming. The Ordinaries may erect 
subsidiary parishes or chaplaincies, but only within the 
limits of a canonical parish. The letter of the Apostolic 
Delegate says that a special decree of the Ordinary is 


36 ° 


ECCLESIASTICAL BENEFICES 


not necessary for the erection of a parish, if limits have 
been assigned. In other words, those parishes which 
met the three conditions mentioned above at the moment 
the Code went into effect were automatically raised to 
the rank of canonical parishes and are benefices. 

Competent Authority and Requisites 

Consistorial benefices are erected by the Apostolic See 
alone. 

Besides the Roman Pontiff, the local Ordinaries can 
establish in their respective dioceses non-consistorial ben¬ 
efices, with the exception of dignitaries of cathedral and 
collegiate chapters (can. 394, § 2). 

The vicar-general needs a special commission from 
his Ordinary for establishing a benefice. 

Can. 1415 determines the endowment ( dos ) as follows: 
it must be stable, viz., prospectively durable and suffi¬ 
cient for the maintenance of the building, the divine 
worship, and the ministers. 

If the endowment is made in cash, the Ordinary should, 
in union with the board of administrators, see to it that 
the money is safely invested in interest-bearing property 
or titles, i. e., stocks or bonds. 

It is not forbidden to establish a parish or quasi-parish, 
even if a sufficient endowment is not immediately avail¬ 
able, provided it can be reasonably foreseen that the neces¬ 
sary support will be forthcoming. 

Before a benefice is erected, those who are interested 
in its erection should be invited and heard, this includes 
the parishioners, and others who may have to contribute 
or will probably suffer a detriment. But the omission of 
this formality does not invalidate the establishment of a 
benefice or parish. 


UNION OF BENEFICES 


36 1 


The founder may lay down certain conditions in the 
charter with the consent of the Ordinary, i. e., the dio¬ 
cesan bishop or the superior of exempt clerical religious 
if the benefice is to be a religious one. These conditions 
may be contrary to common law, but they must be reason¬ 
able and compatible with the nature of the benefice. 

For the establishment of a benefice Can. 1418 requires 
a legal document, in which the place of the benefice is 
designated, and the endowment, rights, and obligations 
are described. This paper must be drawn up by the ec¬ 
clesiastical authority, in our country with the cooperation 
of a notary public. 


Union of Benefices 

A union of benefices is called extinctiva, or per con- 
fusionem, when out of two or more suppressed benefices 
an entirely new one is created, or when two or more bene¬ 
fices are combined with a third so that they cease to exist 
as a juridical entity. In both cases the new benefice 
assumes all the rights and obligations of the suppressed 
or united benefices. However, if these rights and obliga¬ 
tions conflict, only the more substantial and favorable 
ones are to be retained. 

A union is called aeque principalis if two or more 
benefices, though united, remain as before, neither one be¬ 
coming subordinate to the other. In this case each bene¬ 
fice retains its nature, rights and obligations, but one and 
the same cleric may hold titles to all. Two independent 
dioceses held by one and the same bishop afford an 
example of such a union (e. g., Viterbo-Toscanella.) 
Two dioceses thus united may hold their synods either 
separately or together, have two vicars-general, distinct 
revenues, feasts, etc. The same rule applies to two par- 


362 


ECCLESIASTICAL BENEFICES 


ishes united aeque principaliter :—their boundaries re¬ 
main distinct, so that marriages must be performed in the 
respective parish churches, etc. There is no overlapping 
in this case, but one and the same pastor attends to both 
parishes and holds the titles to them. 

Minus principalis is a union per subiectionem or per 
accessionem, in which the several benefices remain dis¬ 
tinct, but one is made subordinate or accessory to the 
other. In this case the accessory benefice follows the 
principal one, upon which it depends, so that the clergy¬ 
man who obtains the principal, eo ipso receives the acces¬ 
sory benefice, and is obliged to fulfil the obligations 
incumbent on both. No doubt this is the meaning of the 
term subsidiary parishes or chaplaincies, which the S. 
Congregation had in view when it directed our American 
bishops to create such within the boundaries of existing 
parishes wherever lack of endowment or shifting of the 
population do not permit the erection of new parishes. 

A benefice is transferred when its seat,—for instance, 
a chapel or church,—is changed from one place to an¬ 
other, whilst the benefice remains the same as to its nature, 
rights, and obligations. 

A division of benefices is made if two or more benefices 
are created out of one; this is also applicable to our 
parishes. 

Dismemberment takes place when a part of the terri¬ 
tory or the revenues belonging to one benefice are taken 
away and united with another benefice, or with a charita¬ 
ble or ecclesiastical institution, as, for instance, a semi¬ 
nary. 

Transformation is a specific change of benefices, for 
instance, if a non curata would be turned into a curata, or 
a collegiate into a cathedral benefice. 


UNION OF BENEFICES 363 

Suppression is the extinction of a benefice; this cannot 
be lawfully done by the civil government. 

The extinction, suppression, and dismemberment of 
benefices, when the revenues are withdrawn and no new 
benefice is erected; the union, whether aeque or minus 
principalis, of a religious with a secular benefice, or vice 
versa; and the transfer, division, and dismemberment of 
benefices belonging to religious, are reserved to the Apos¬ 
tolic See. 


Rights of Local Ordinaries 

Local Ordinaries may, for reasons of necessity or great 
and evident utility of the Church, either aeque or minus 
principaliter unite parish churches with one another or 
with non-curate benefices. However, a unio minus prin¬ 
cipalis of a parish with a non-curate benefice must be 
made in such a manner that the latter becomes an ac¬ 
cessory to the parish. 

This union cannot be performed by the vicar-capitular, 
on account of can. 436, nor by the vicar-general, unless 
he has obtained a special commission for that purpose. 

Such a union must be made for good (in perpetuum), 
in order to avoid a cumulation or plurality of benefices. 
Reasons of necessity or utility would be poverty, a de¬ 
crease of the population, the settling of quarrels, increase 
of divine worship, etc. 

Ordinaries may not unite a parish with the mensa of 
the chapter or of the bishop, nor with a monastery or 
church in charge of religious (this being reserved to the 
Holy See), nor with any corporation, nor with cathedral 
or collegiate dignities or benefibes. However, they may 
unite a parish with the cathedral or collegiate church if 


364 


ECCLESIASTICAL BENEFICES 


the latter is located within the boundaries of the same, 
but in doing so must provide that the parish revenues are 
invested in the cathedral or collegiate benefice and the 
actual pastor or his substitute is paid a decent income 
(the congrua). 

Can. 1424 forbids Ordinaries to unite either curate or 
non-curate benefices against the will of the actual incum¬ 
bents, if the latter suffer damage by that union. It also 
forbids them to unite benefices of advowson ( iurispatro- 
natus), either lay or ecclesiastical, with benefices of free 
collation, without the advowee’s consent, and to unite 
benefices of one diocese with such of another diocese, even 
though both are united aeque principaliter and governed 
by the same bishop. Finally it forbids Ordinaries to unite 
exempt benefices, or such as are reserved to the Apostolic 
See, with any others. The reason for this prohibition 
lies partly in the danger of alienation, partly in the con¬ 
fusion of rights and subsequent litigation. 

If a parish has, by papal rescript, been united with a 
religious house as to temporalities only, the religious 
house is entitled to the revenues, and the superior must 
present to the local Ordinary a member of the secidar 
clergy, who is then appointed pastor and receives his 
salary from the religious house. 

If a parish is incorporated pleno iure with a religious 
community by the Holy See, the religious superior may 
designate one of his subjects to take charge of the same; 1 
but the local Ordinary has the right to subject the ap- : 
pointee to an examination and to give him his canon¬ 
ical appointment. Besides, the pastor religiosus is sub¬ 
ject to the jurisdiction, coercive power, and visitation of 
the local Ordinary in whatever belongs to the care of < 
souls. 

For reasons of necessity, or great and evident utility, 




DIVISION OF PARISHES 


365 


Ordinaries may transfer the seat of a secular parochial 
benefice to another place within the boundaries of the 
same parish; but other benefices they may not transfer to 
the mother church, or to another church of the same or 
a nearby place, unless the church in which said benefices 
were founded has collapsed and cannot be restored. If 
such a transfer has to take place, the altars or chapels 
should, if possible, be re-erected in the church to which 
the benefice was transferred under the same titles which 
they had in the original benefice, and all the revenues 
and burdens of the former church are transferred to the 
latter. 


Division of Parishes 

Ordinaries may, for a just and canonical reason, divide 
parishes of any kind by establishing a perpetual chaplaincy 
or a new parish, or dismember the territory of such 
parishes; and they may do so even against the will of the 
rectors of the parishes, and without the consent of the 
people. 

The canonical reasons for dividing or dismembering 
a parish are: great difficulty on the part of the people 
to come to the parish church or impossibility of properly 
attending to their spiritual needs because of too great 
a number. 

Note the expression “ea tantum”; only the two reasons 
mentioned are acknowledged as canonical. Hence a desire 
to create more parishes within a city or diocese cannot 
be considered a canonical reason for dividing the existing 
parishes. The distance has been sometimes described in 
Roman decisions 1 as of one or two hours, to be walked, 

!S. C. C., June 22, 1743; Sept. 27, 1732; Jan. 29, 1735, etc. 


366 


ECCLESIASTICAL BENEFICES 


of course, sometimes as 1500 passus (about a mile and a 
quarter), sometimes as three Italian miles, sometimes 
simply as a long and arduous way, especially if impeded 
by a torrent or river. 

The phrase “too great a number is relative; it means, 
if the spiritual welfare of the faithful suffers because 
there are too many to be taken care of. In 1905 and 
1907 the S. Congregation 2 decided the case of a parish in 
charge of the Capuchins, which numbered about 6,500 
souls and was well taken care of, but divided by the Or¬ 
dinary. The S. Congregation first refused to sanction the 
decree, but new reasons advanced by the episcopal court 
finally led to a ratification of the same. However, neither 
the distance 3 from church nor the number 4 of parish¬ 
ioners has ever been definitely fixed by the Roman au¬ 
thorities, and it would be futile, therefore, to try to deter¬ 
mine either. Local circumstances must be considered and 
the welfare of souls regarded as the supreme law. The 
latter does not, however, demand that a flourishing con¬ 
gregation, say, of four or five hundred or more families 
be broken up for the sake of a few “kickers” or to make 
a vain display of parishes. The fact that old parishes 
are sometimes loaded down with debts and new parishes 
often require heavy sacrifices should be duly taken into 

(Richter, Trid., 117, nn. 5 ff.) ; a distance of 30 miles would cer¬ 
tainly be sufficient; S. C. C., March 28, 1903 (Anal. Eccl., XI, 116 

ff.). 

2 S. C. C., Jan. 21, 1905; July 27, 1907 ( Anal Eccl., XIII, 23 
ff.; XV, 338 ff.) ; a legacy of 30,000 lire was promised to the 
newly erected church. 

3 A distance of one Italian mile has never been considered 
sufficient cause for dismembration; see Anal. Eccl., XIII, 27. 

4 One parish had 26,000 souls (=about 5,000 families), which 
pumber appeared too great for one pastor with his assistants 


DIVISION OF PARISHES 


367 


account. The faithful should not be needlessly burdened, 
especially in critical times such as ours. A parish with 
300 or 400 families who live within a radius of about one 
mile and a half with good roads or streets, and sometimes 
street railways and automobiles, can easily be taken care 
of by the pastor with the aid of one or two assistants and 
certainly does not call for dismembration, unless perhaps 
dangerous tracks or factories, or undesirable quarters 
have to be passed by a considerable number of the 
parishioners. 

The Ordinary, when he divides a parish, must assign 
sufficient revenues or provide in some other way for the 
new parish or chaplaincy. If no other source of revenue 
is available to provide the new parish with sufficient 
funds, these must be taken from the mother church, pro¬ 
vided, however, that a sufficient income is left to the lat¬ 
ter. Of course, this holds also if the new parish was de¬ 
tached from a religious parish. Here it is not superflu¬ 
ous to remark that the accounts of a parish in charge of 
religious should be kept strictly separate from those of 
the monastery. If there are any accrued funds, the sal¬ 
ary of the pastor, as well as the expenses for the upkeep 
of the church and divine worship must first be deducted, 
and if anything is left, the old parish is bound to share 
it with the newly erected one. 

But what if there are debts on the old parish? Here 
the injustice of some divisions becomes apparent. As 
it is entitled to a share of the revenues, the new parish 
has to share also the debts, for it would be unjust to 
saddle a debt which was calculated for 400 or more famil¬ 
ies, on 150 or even less. 

to attend to properly; S- C. C., Jan. 25, 1879 (A. S, S., XIII, 
287 ff.) 


3 68 


ECCLESIASTICAL BENEFICES 


If the chaplaincy or new parish is endowed from the 
revenues of the old, the latter, as the mother church, is 
entitled to certain marks of honor, which should be de¬ 
termined by the Ordinary, who, however, is not allowed 
to reserve the right of the baptismal font to the mother 
church. Sometimes a candle had to be offered, some¬ 
times the baptismal water had to be gotten from the 
mother church, but the latter practice is now forbidden, 
and justly so, for a parish without a baptismal font is 
badly handicapped. The bishop may decide what signs 
of honor should be paid,—for instance, a procession, an 
invitation to preach, etc. 

A parish detached from one which belongs to religi¬ 
ous, does not become a religious parish, and the religious 
may not claim it, but to obtain it need the recommenda¬ 
tion of the bishop and a papal indult. 

Can. 1428 mentions certain formalities which the local 
Ordinaries must observe when they unite, transfer, di¬ 
vide, or dismember benefices. One of these is that an. 
authentic document be drawn up, signed, and sealed with 
the diocesan seal. The other formality consists in hear¬ 
ing the advice of the chapter, or, with us, of the diocesan 
consultors, which is to be given colicgialiter, i. e., at a 
meeting. Besides, the bishop must also summon all those 
who are interested in the transaction, viz., the parishion¬ 
ers or their representatives, and especially the rectors of 
the resp. churches. 

Are these formalities required for the validity of the 
act? Although the consent is not required, yet the omis¬ 
sion of the formalities appears to affect the validity of a 
division or dismemberment. This we deduce from can. 
105, n. 1 °, which reads: “Si consilium tantum, per verb a, 
ex gr .: de consilio consultorum, vel audito Capitulo, par- 


DIVISION OF PARISHES 


369 

ocho etc., satis est ad valide agendum at Superior illas 
personas audiat. Hence he is obliged to hear their ad¬ 
vice, although he is not bound to follow it. 

A union, transfer, division, or dismembration made 
without a canonical reason is invalid, because every such 
act involves a change in the status of a church or benefice, 
and is therefore a species of alienation which no one in¬ 
ferior to the Supreme Pontiff can validly perform with¬ 
out a reason. Therefore if neither the distance nor the 
number of parishioners demanded a division, it would be 
invalid. 

If the Ordinary deems the reason just and canonical, 
whilst the greater part of the congregation and the old 
pastor think it unjustified, the union, transfer, division, 
or dismembration takes effect, but recourse is open to 
the Holy See. This recourse, however, is not properly 
an appeal, and, therefore, does not suspend the effect of 
the episcopal decree, but devolves the matter on the S. 
C. Concilii. This is a rather tedious and sometimes costly 
affair. 

The local Ordinaries may not impose on any kind of 
benefice either perpetual or temporary pensions, which 
last during the lifetime of the pensioner, but may, when 
conferring a benefice, for a just reason to be mentioned 
in the act of bestowal, impose a temporary pension to 
be paid during the lifetime of the beneficiary, provided, 
however, the latter’s income is safeguarded. 

On parochial benefices the Ordinaries can impose pen¬ 
sions only in favor of a pastor or substitute ( coadiutor ) 
when he leaves his office (as rector or pastor emeritus). 
But the amount of this pension shall never exceed the 
third part of the entire parish revenues, after all ex¬ 
penses and uncertain revenues have been deducted. 


370 


ECCLESIASTICAL BENEFICES 


Pensions imposed on benefices either by the Roman 
Pontiff, or by other collators, cease with the death of 
the pensioner, who, unless expressly empowered to do so, 
may not alienate his pension. 

Bestowal of Benefices 

Cardinals may confer benefices in their titular churches 
or deaneries, and Ordinaries in their dioceses, because 
they have the priority or right in their favor ( habcnt 
intentionem fundatam in iure). 

The vicar-general, however, cannot confer benefices 
unless he has received a special commission for this pur¬ 
pose from his bishop. The vicar capitular or adminis¬ 
trator can confer parochial benefices, but only accord¬ 
ing to can. 455, § 2, n. 3; other perpetual benefices he 
may not confer at all, on account of can. 436. 

If the Ordinary does not make an appointment to a 
vacant benefice within six months from the time when 
the vacancy became known to him, the right of making 
the appointment passes to the Apostolic See, unless (can. 
458) special reasons permit a delay, and an administrator 
is left in the place. 

Secular benefices may be conferred on secular clerics 
only, religious benefices only on religious of the institute 
to which the benefice belongs. 

Hence a benefice belonging, e. g., to the Franciscans 
should not be conferred on a Benedictine, and vice versa. 
This rule also holds with regard to prelacies. 

Installation of Beneficiaries 

No one shall take possession of a benefice conferred 
upon him, on his own authority, or before he has made 


CLERICAL PROPERTY 


37 i 

the profession of faith, if the benefice requires it. In 
regard to non-consistorial benefices, the right of installa¬ 
tion belongs to the local Ordinary, who may, however, 
delegate another ecclesiastic,—generally the rural dean. 

The manner in which installation should take place is 
prescribed by particular—for instance, diocesan—stat¬ 
utes, or by custom, and the prescribed rite must be ob¬ 
served unless the Ordinary has granted a written dispen¬ 
sation, in which case the dispensation takes the place of 
the formal installation. 

The installation may be performed by proxy if a spe¬ 
cial mandate to that effect has been issued by the ap¬ 
pointee. 


Rights and Duties of Beneficiaries 
(Can. 1472 ff.) 

Every beneficiary, after having taken canonical posses¬ 
sion of his benefice, is entitled to all the rights, temporal 
and spiritual, attached to the same. 

Among the temporal rights the foremost is that of en¬ 
joying the revenues derived from the benefice, as far as 
they are needed for the beneficiary’s decent support. He 
is entitled to these revenues even though he may possess 
other property, but is obliged to devote the superfluous 
revenues to the poor or to charitable institutions. 

Since this rule is undoubtedly intended also for pastors 
and curates who hold no strictly so called benefices, it 
may be well to recall the different kinds of clerical prop¬ 
erty. They are: 

(1) Patrimonial, if derived from the cleric’s patri¬ 
mony, e. g., by inheritance; 

(2) Quasi-patrimonial, or industrial, if acquired by 


372 


ECCLESIASTICAL BENEFICES 


the clergyman’s own industry or diligence, from work 
which has no connection with his benefice, for instance, as 
a lecturer, a musician, an author; 

(3) Parsimonial, if acquired from ecclesiastical or 
beneficiary revenues by living very frugally, so that 
something is left over and above the expenditures for 
decent support; 

(4) Beneficiary , if acquired from the benefice after a 
decent support has been deducted, in other words, from 
the surplus revenues. 

What a decent support is must be decided according 
to the circumstances of time and place. It includes mod¬ 
erate and customary hospitality, which has always been 
inculcated by the Church, and suitable recreation and 
provision for old age and inability, for instance, by life 
insurance or interest-bearing investments. 

The Code speaks of superfluous revenues. What are 
they? Discarding the patrimonial and quasi-patrimon- 
ial, there can be question only of parsimonial and strictly 
beneficiary income. However, since the Code mentions 
congrua, it is not likely that parsimonial incomes are un¬ 
derstood, and canonists generally do not apply the law to 
them. Hence only the strictly beneficiary revenues, which 
are left after one has provided for his decent support, can 
be understood. These are superfluous, and must there¬ 
fore be applied, as the law says, to the poor or to chari¬ 
table institutions. Note that this is a strict obligation, 
not ex mera caritate, but ex iustitia. Our text is quite 
explicit on this point, since it calls the beneficiary only 
the usufructuary, not the possessor or lord, of his 
benefice. 

A beneficiary is obliged to fulfill faithfully the special 
obligations connected with his benefice, and to recite the 
canonical hours daily. 


DUTIES OF BENEFICIARIES 


373 


If he neglects the obligation of reciting the divine 
office without a lawful reason, he is bound to make resti¬ 
tution of the revenues received, in proportion to the ex¬ 
tent of his culpable omission, and should give the amount 
due to the church fund, or to the diocesan seminary, 
or to the poor. 

As guardian of his benefice, the beneficiary must ad¬ 
minister the goods belonging to the same according to 

law. 

If he has been culpably negligent, he is bound to repair 
the damage, and the local Ordinary shall compel him to 
make up for the loss. If the beneficiary is a pastor, he 
can be removed. 

The ordinary expenses of administration and of col¬ 
lecting the revenues must be borne by the beneficiary. 

Extraordinary expenses incurred for repairing the bene¬ 
ficiary’s residence must be borne by those who are obliged 
to make these repairs, unless the charter of the foun¬ 
dation or mutual stipulation and custom provide otherwise. 

Minor repairs, which the beneficiary has to make at 
his own expense, should be made as soon as possible, to 
avoid greater ones. 

The local Ordinary is obliged to see to it, through 
the rural deans, that the property belonging to benefices is 
preserved and properly administered. 

The property of the mensa episcopalis shall be carefully 
administered by the bishop. His residence must be kept 
in good condition, and if repairs are required, the expenses 
are to be paid from said mensa, unless others are obliged 
to defray them. 

The bishops shall also take care that an accurate in¬ 
ventory is made of all the movable property belonging to 
the episcopal residence, and that everything is safely 
transmitted to their successors. 



374 


ECCLESIASTICAL BENEFICES 


Since Ordinaries, too, are beneficiaries, these rules also 
apply to them, more particularly if the bishop retains the 
pastorship of the cathedral, for then he is a beneficiary 
in a twofold sense, namely, as bishop and as pastor of the 
cathedral parish. 


Resignation 

(Can. 184-191; Can. 1484-1486) 

Resignation is the act of giving up an office or trust; 
here, the giving up of the episcopal or some other ecclesi¬ 
astical office. The Code distinguishes express from tacit 
resignation. Express resignation, to be valid, must have 
certain qualities. 

1) On the part of the resigner it is required that he be 
in full possession of his mental faculties ( compos sui ), 
which means that he is capable of a human act and entirely 
free, namely that no physical compulsion, grave fear or 
deceit was brought to bear upon him in connection with 
the resignation, and that it was not achieved by simony 
or error, because all such resignations are ipso hire null 
and void. He must have a just reason for resigning. 
Such reasons were pointed out in former law-texts as 
follows: 

a) Advanced age, which means senium, or past sixty 
years. There is no definite limit established in law when 
this reason can be applied, but we may be permitted to 
observe that there can hardly be any doubt that a prelate at 
seventy-five or more is not usually in a condition to do 
full justice to his important office— contra factum non 
valet disputatio. But what should be done in this 
case? The well-known saying (( aiHicto afdictio non est ad¬ 
denda” and the so-called connubium spirituale between 


RESIGNATION OF BENEFICIARIES 375 

the prelate and his benefice are certainly arguments which 
cannot be lightly set aside; they speak in favor of a con¬ 
siderate treatment of old age, as dictated by nature. On 
the other hand, however, there are just as weighty reasons 
against a too sentimental interpretation of the law. It is 
an axiom that “ Bonum privatum cedere debet bono 
publico” and that “Offices are made for men, not men 
for offices,” as the “sabbath was made for man, and not 
man for the sabbath” (Mark II, 27). There is a gap 
in the Code concerning this very important matter. We 
know, of course, of the expedient which has been applied 
in several instances, viz., a coadjutorship, but this is 
sometimes a rather illusory remedy, and not always satis¬ 
factory. The State applies the pension system, and, 
we believe, a similar plan would be productive of good 
in the case of aged or feeble prelates and pastors. 

b) Sickness, bodily infirmity and corporal deformity, 
which prevent one from securely, decently and satisfac¬ 
torily performing the duties connected with the pastoral 
office; 

c) Consciousness of crime and censure with the rep¬ 
utation at stake; 

d) Deadly or lasting enmities between pastor and flock, 
to the scandal of others, especially outsiders; 

e) Receiving another office incompatible with the one 
already possessed; 

f) Entrance and profession in a religious order. 

2) On the part of the superior it is required that the 
resignation be accepted by the grantor of the office or 
benefice, or his successor, or their delegate. Hence 
bishops and abbots must present their resignation to 
the Pope; intermediate religious superiors or prelates 
to the highest or supreme authority under their constitu- 


376 ECCLESIASTICAL BENEFICES 


tions or rules; minor offices may be resigned into the 
hands of the bishop or his coadjutor, if the latter has 
full power, of the vicar-capitular (administrator), but 
not the vicar-general, unless he has a special mandate. 

3) The form in which resignation must be made is 
either in uniting or verbally in the presence of two wit¬ 
nesses. If resignation is made by proxy, all the con¬ 
ditions of a mandatarius must be observed, as well as the 
prescribed formalities. 

Regret or a change of mind on the part of the resignor 
does not render an accepted resignation invalid, although 
the resignor may again be validly elected, presented or 
appointed to the same office. However, a prelate who 
has resigned his office and obtained it anew, must reckon 
his seniority of rank from the date of the second ap¬ 
pointment. 

Tacit resignation (can. 188) is brought about and pro¬ 
duces the effect of ipso facto vacancy without any further 
declaration in these cases: (1) by a valid (either simple 
or solemn) profession in a religious institute; (2) by 
neglect to assume the office to which one has been ap¬ 
pointed within the tempus utile granted by law for the 
respective office; this time, for bishoprics, is four months 
from the date of confirmation or the promotio facta in 
consistorio; (3) by accepting another office incompatible 
with the former; (4) by public defection from the Cath¬ 
olic faith; (5) by contracting marriage, though it be 
only civil; (6) by doffing the ecclesiastical garb of one’s 
own accord and with contumacy toward the Ordinary; 
(7) by enlisting in the army against the law of the 
Church (can. 141); (8) by culpable neglect of the law 
of residence. 

As to the resignation of minor offices, such as pastor- 


EXCHANGE OF BENEFICES 


377 

ships and chaplaincies, of assistants and rectors, it may 
suffice to state the following: 

a) The resigner must expressly declare whether or not 
the benefice was one on the title of which he had been 
ordained; if it was the titulus ordinationis, his resignation 
cannot be accepted unless it be solidly (if necessary by 
oath) proved that the resigner has other means of sup¬ 
port, otherwise the resignation is invalid; 

b) If another title, for instance, patrimony, was sub¬ 
stituted, this fact, too, must be established beyond reason¬ 
able doubt; 

c) The consent of the Ordinary into whose hands the 
benefice was resigned must be given by means of a dec¬ 
laration that the substitution of the title has been law¬ 
fully made; 

d) Conditional resignation, especially in favor of an¬ 
other, is forbidden, on account of the danger of hered¬ 
itary succession. 

An exchange or a mutual transfer of benefices can be 
made under the following conditions, laid down by the 
Code (can. 1487 f.) : 

a) That no other interested person suffer detriment 
therefrom; 

b) That if the benefice be one of advowson, the consent 
of the patron be obtained; 

c) That the exchange be made with the permission of 
the local Ordinary, or, more accurately speaking, of the 
bishop, because the vicar-general needs a special man¬ 
date and the vicar-capitular cannot give the permission 
at all; 

d) That it be made either in writing or before two 
witnesses. Exchange of benefices reserved to the Holy 
See requires a papal indult. 


378 NON-CORPORATE INSTITUTIONS 


Other Non-corporate Ecclesiastical Institutions 
(Can. 1489-1494) 

1. Local Ordinaries may erect hospitals, orphanages 
and similar institutions destined for religious or charitable 
(spiritual or temporal) works; they may also endow 
siuch institutions with the character of ecclesiastical 
corporations. 

The canonical nomenclature for a hospital, orphanage, 
or similar institution under ecclesiastical control is domus 
religiosa, a religious or rather ecclesiastical foundation or 
house. To deserve this name, an institution must be 
destined for works of piety or charity by the ecclesiastical 
authority, i. e., the local Ordinary or an exempt religious 
superior. An institution founded by private persons 
without ecclesiastical authorization, even though its pur¬ 
pose be sacred, is called merely domus pia. 

The text says: “et per eius decretum persona iuridica 
in ecclesia constitui. }} The corporate character attached 
to such an institution by the decree of the Ordinary may 
be taken in a twofold sense: as a corporation proper and 
as an institute or juridical entity. The corporate charac¬ 
ter can only be given if the house belongs to a com¬ 
munity or religious corporation which owns and ad¬ 
ministers it, either by itself or in the name of the Church. 
For neither patients nor orphans constitute a corporation; 
they are merely beneficiaries or dcstinatarii. In the 
wider sense, the object (finis) of an institute is, by a 
legal fiction, the carrier or subject of its rights and 
duties, i.e., generally the officials or representatives ac¬ 
knowledged by law. 

2. Before the local Ordinary gives his approval, or 


RIGHTS OF THE ORDINARY 


379 


issues a decree, he must assure himself that the founda- 
tion is really useful and sufficiently endowed, or that it 
has prospects of obtaining sufficient funds. If he ne¬ 
glects this duty, the blame, together with such undesirable 
consequences as debts, etc., falls on him. 

3. In all such institutions the rector or syndic shall 
administer the temporalities according to the by-laws laid 
down in the charter. His rights and obligations are the 
same as those of the administrators of other ecclesiastical 
property. 

The charter must contain an accurate description of the 
constitution, purpose, endowment, administration, and 
government of the institution, also of the use to be made 
of the revenues and who is to succeed to the property in 
case the institution goes out of existence. 

Of the charter and by-laws two copies must be made, 
one of which is to be kept in the archives of the institution 
itself, the other in the diocesan court. 

The local Ordinary has the right and the duty of visit¬ 
ing all such institutions, even though they are corpora¬ 
tions or otherwise exempt. 

If non-corporate institutions are in the care of a re¬ 
ligious diocesan community, they are entirely (i. e., both 
in spiritual and temporal matters) subject to the jurisdic¬ 
tion of the local Ordinary; if they are in charge of a 
pontifical or papal religious community, they are under 
the supervision of the local Ordinary in whatever con¬ 
cerns faith and morals, pious devotions, and the adminis¬ 
tration of the Sacraments. 

Although a pious or ecclesiastical institution may, in 
virtue of its charter, or by prescription, or by a papal priv¬ 
ilege, have obtained exemption from the jurisdiction and 
visitation of the local Ordinary, the latter is entitled to 


380 


TEMPORAL POSSESSIONS 


demand an account of its affairs, and every contrary cus¬ 
tom is hereby reprobated. 

If a founder insists that the administrators should not 
be obliged to render an account to the local Ordinary, the 
foundation cannot be accepted as an ecclesiastical one. 

The local Ordinary shall see to it that the pious desires 
of the faithful, as set forth in the charter of such institu¬ 
tions, are fully carried out. 

Without the permission of the Apostolic See such insti¬ 
tutions cannot be suppressed or incorporated with others, 
or converted to purposes other than those prescribed by 
the founders, unless the charter provides differently. 


SECTION X 

TEMPORAL POSSESSIONS 

The Catholic Church and the Apostolic See have the 
inherent right, freely and independently of any civil 
power, to acquire, retain, and administer temporal goods 
for the pursuit of their own ends. 

Individual churches and other corporations established 
as such by the ecclesiastical authority, are also endowed 
with the right of acquiring, retaining, and administering 
their own property, according to Canon Law. 

Can. 1496 vindicates to the Church, independently of 
any civil power, the right to demand of the faithful what¬ 
ever is necessary for divine worship, for the support of 
her clergy and other servants, and for the pursuit of 
her proper ends. 


HOLDING CHURCH PROPERTY 381 


If goods or objects belonging to the Church have 
received a consecration or blessing by which they are 
destined for divine worship, they are called sacred. This 
character, of course, adheres to corporeal things only. 
Precious objects are such ecclesiastical things as have a 
considerable value on account of the artistic skill with 
which they are wrought, or because of their antiquity or 
historical associations or on account of the material con¬ 
tained in them. 

The Church has the right of acquiring property by all 
just means, which are permitted by either natural or posi¬ 
tive law to other citizens or individuals, i. e., by contract, 
donation, inheritance, etc. 

The title or ownership is vested in the corporation it¬ 
self, though of course dependently on the Holy See, i. e., 
common law. 

Here it may not be amiss to point out the different 
forms of holding church property. They are: (a) by 
corporation sole, which consists of one person, who trans¬ 
fers it to his successor in office; thus a bishop or pastor 
holds property in the name and as officer of the diocese 
or pastor; (b) by corporation aggregate, when the church 
members are the incorporators and whatever property 
they possess or acquire is vested in the body corporate; 
(c) in fee simple, which conveys absolute and direct 
ownership of the property, and was looked upon in 
former days as vested in the bishop for all diocesan 
property. 

If a diocese or corporation is divided, so that part 
of its territory is united to another corporation, or a 
distinct juridical person is established out of the dis¬ 
membered part, the property that belonged to the terri¬ 
tory as a whole must be divided and the debts distributed 
by the competent ecclesiastical authority. This division 


382 


TEMPORAL POSSESSIONS 


must be made according to the principles of justice and 
equity, with due regard to the will of the founders or do¬ 
nors, the acquired rights and the particular statutes gov¬ 
erning the moral person who sustained the division. 

The proportion to be observed is twofold: general and 
particular. The general proportion is indicated by the 
phrase, “bonum et aequum” But since it is a maxim 
that equity follows the law, it is evident that justice must 
be the first measure, to be taken not in the arithmetical, 
but in the geometrical sense, for it would be next to impos¬ 
sible to make such an equal division that cent for cent and 
inch for inch would be shared. The particular proportion 
is to be gauged by the acquired rights (because melior est 
conditio possidentis) , the charter and by-laws. This same 
proportion is applied in can. 1501 to the case where a 
moral or juridical person ceases to exist. For this par¬ 
ticular proportion means that all the property left by such 
an extinct person passes to the immediate superior. Thus, 
for instance, the property of an extinct parish goes to the 
diocese; if a diocese were suppressed, we suppose the S. C. 
Consistorialis would provide with regard to its property. 
If a monastery or convent of a centralized order becomes 
extinct, its property passes to the province, unless the 
constitutions rule otherwise. 

Begging 

Private persons, whether clerics or laymen, are for¬ 
bidden to beg alms for any charitable or ecclesiastical 
institution or purpose, unless they have the written per¬ 
mission of the Apostolic See or that of their own and of 
the local Ordinary. 

Who are the private persons here intended? All those 


BEGGING 


383 


who beg without official or public capacity, authority or 
warrant, no matter whether they belong to the ranks of 
the clergy or laity. A pastor is no private person, and 
may therefore collect within the boundaries of his parish, 
but not beyond, without the required permission, be¬ 
cause outside his own district he has no official capacity. 
Diocesan statutes should regulate this matter with due 
regard to needs, equity and justice, as also the charity of 
the people. The so-called chain-letters belong in the 
waste-basket. 

Are bishops allowed to collect in another diocese than 
their own? If they have obtained the written consent of 
the respective Ordinary, they certainly are allowed to do 
so. 

Private persons are distinguished from public persons, 
or persons acting as representatives of a public corpora¬ 
tion, or an acknowledged society, or in an official capacity, 
just as we have private and public documents. If a 
governor or mayor makes an appeal to the State or 
municipality, it is a public appeal. 

As to begging by religious, see can. 621-624. Beg¬ 
ging may be done in writing—of which there is no end. 

The Latin text stipem cogere means collecting money, 
or contributions in money, but the manner of collecting 
it is not determined; therefore, it may include any kind of 
means or ways. But the trouble is that letters cannot 
easily be controlled. To encounter this inconvenience, 
diocesan statutes should make it a point of emphatic, 
though charitable, ruling, which pastors should communi¬ 
cate to their people. 

Canons 1504-1506 treat of certain contributions to be 
made either to the bishop, or to the diocese, or to pen¬ 
sioned clergymen, to which we may add the tax for the 


384 


TEMPORAL POSSESSIONS 


seminary, although the Code mentions it in can. 1355 and 
1356 . 


The Seminary Tax 

The seminary tax must be paid by all who hold ec¬ 
clesiastical benefices, including religious, and by all par¬ 
ishes and quasi-parishes, even though they have no other 
income than the offerings of the faithful. This tax must 
be general and equal, proportionate to the needs of the 
seminary, and the maximum rate should not exceed five 
per cent of the net income or capital taxed. This means 
that a poor parish, which can barely exist, after the ex¬ 
penses for the support of the pastor and worship and re¬ 
pairs have been deducted, will have to pay very little for 
the seminary. Take, for instance, the income to be about 
$3000; we ask, what remains after the necessary expenses 
have been defrayed? Perhaps $200 or $300, which 
would mean $10 or $15 for the seminary tax. It appears 
to us a rather doubtful means for spreading religion and 
training an efficient clergy to erect luxurious palaces for 
seminarians who may afterwards have to be satisfied 
with few comforts, and to tax struggling parishes be¬ 
yond their means. <( Sapienti sat”; complaints are heard 
everywhere. 

It must also be added that the Code (can. 1356) ad¬ 
mits no appeal in devolutivo against paying the seminary 
tax; although, of course, recourse is not excluded if any 
one thinks he is not obliged to pay. 

The law reprobates any contrary custom and abro¬ 
gates all privileges, such as of orders of exempt reli¬ 
gious or congregations. 



THE CATHEDRATICUM 


385 


The Cathedraticum 

The cathedraticum is a sign of subjection to the local 
Ordinary, but not, properly speaking, a means of support 
for the bishop. Who must pay it? 

a) All churches and public oratories subject to epis¬ 
copal jurisdiction must pay the cathedraticum, even 
though they may not have been subject to it formerly. 
This rule certainly applies to all churches governed by 
secular clergy. Churches or public oratories in which 
exempt religious hold services for themselves only, and 
not for outsiders, or for these only per accidens, need not 
pay the cathedraticum. But if exempt religious have 
a parish church, even though it be an abbey or a con¬ 
vent church, or an incorporated public oratory, and even 
though one of their own number acts as pastor or chap¬ 
lain, they are obliged to pay this tax. 

b) All holders of benefices not exempt from episcopal 
jurisdiction must pay the cathedraticum. 

c) Lay confraternities must pay the cathedraticum if 
they own, not merely a chapel erected in honor of a 
saint in some church, but a church or public oratory of 
their own, even though no benefice is connected with it. 

The amount of this tribute was formerly established 
at two solidi (about $6) a year; but the Code leaves it 
to be determined by provincial councils. 

A recent decision of the ,S\ C. Concilii throws some 
light on this subject. A French bishop had asked per¬ 
mission to demand two per cent, of each Catholic, so that, 
for instance, a parish with 500 souls would pay ten francs, 
a parish with 1000 souls, twenty francs, and so on, in 
proportion to the numerical strength of each parish, 


TEMPORAL POSSESSIONS 


'386 

The sum appeared rather small, still the S. Congregation 
held that the cathedraticum, which should be a moderate 
and uniform “tax,” should not be made a personal, pe¬ 
cuniary tribute, as this would be entirely foreign to the 
very notion of the cathedraticum. The answer, therefore, 
was: “Prout cxponitur, non expcdire.” 1 The S. Con¬ 
gregation advised the bishop to adopt another expedient, 
if necessary, viz., a charitable subsidy. We mention 
this decision because the cathedraticum is sometimes im¬ 
posed by the bishop simply because he needs money. 
Such is not the idea of that contribution. We are quite 
ready to grant that custom has sanctioned this mode of 
supporting our bishops. But, nevertheless, according to 
can. 1507, the cathedraticum must be fixed by a provincial 
council or a meeting of the bishops of the province, and 
the approval of the Apostolic See must be obtained before 
any fixed rate takes effect. This applies also to other 
taxes. 

Hence, even if diocesan statutes should fix these 
taxes, they would not bind unless can. 1507 had been 
complied with. 

The cathedraticum is not subject to prescription. 

Subsidium Caritativum or Special Contributions 

When particular diocesan needs arise the local Ordinary 
(not the vicar-general) may demand, besides the semi- 
naristicum and the pension mentioned in can. 1429, a 
contribution from all beneficiaries, secular as well as reli¬ 
gious; but this contribution must be moderate and can 
be demanded only on extraordinary occasions, and, there- 

1 March 13, 2920 (A. Ap. S., XII, 446) : "Liquet hac ratione 
non haberi merum signum recognitionis honoris, sed verum tri- 
butum fiscale, a quo indoles cathedratici maxime abhorret” 


SPECIAL CONTRIBUTIONS 


387 


fore, differs from the regular diocesan taxes, although 
it may be demanded in justice and under threat of 
penalty. 

Ordinaries are forbidden to impose any other tax be¬ 
sides those mentioned for the benefit of the diocese or 
of a patron (advowee) upon churches, benefices, and 
other ecclesiastical institutions, subject to their jurisdic¬ 
tion, except on the occasion of their foundation or 
consecration. 

It may be worth while to clear up some erroneous ideas 
concerning the nature and extent of this extraordinary 
taxation. 

a) We comprise all these extraordinary taxes under 
the name of subsidium caritativum. We exclude, of 
course, all diocesan collections which have not an ex¬ 
traordinary, but a stable, character. But we include all 
special or particular assessments, or subscriptions, or 
"drives,” or whatever term this subsidy may go by. It 
is defined by canonists as an extraordinary tax imposed 
upon subjects, for a manifest and reasonable cause, and 
demanded in a charitable rather than coercive manner. 
However, most canonists agree that this way of collecting 
the tax does not exclude compulsory means, and, if neces¬ 
sary, even censures. The Code, indeed, has not provided 
a special penalty in this case, although can. 2331, § 1, 
and can. 2347 might be alleged in its support. But it is 
not too much to say that censures should be rarely 
employed. 

b) What are the reasons that justify the imposition 
of such a tax? Can. 1505 uses the general phrase: 
"When a special need should press the diocese” ( speciall 
dioecesis necessitate impellentc). This phrase was un¬ 
derstood by former authors as including the following: 
expenses incurred on the occasion of the consecration 


3 88 


TEMPORAL POSSESSIONS 


and installation of the bishop; great indebtedness incur¬ 
red by the bishop for the utility or necessity of the 
whole diocese or the cathedral church; expenses made 
for the episcopal visit ad limina or to a council, either 
general or provincial. All this goes to show that the 
diocese as such (at large) must be concerned; that the 
need must be real, not fancied; that a solitary religious 
or charitable institution, though it may be useful to the 
diocese, if it is not an institution established by and for 
the diocese, cannot lay any claim to being subsidized 
by this means; that personal debts contracted by the 
bishop as a private person are not to be paid by means 
of a charitable subsidy, such as the canon permits. 

c) What is the amount that may be demanded? Our 
text simply says that it should be a moderate tax and 
extraordinary, i. e. } not of regular occurrence. The 
canonists abstain from giving a fixed sum. One of 
them states that, since the law has not determined the 
amount, it should be gauged by custom, the income 
of the diocese, and the extent of the need for which it 
is demanded. However, there is another limit to the 
amount, as will be seen from the following answer to 
the question: 

d) Who must pay this tax? The answer is clearly 
given in can. 1505: “all beneficiaries, whether secular or 
religious.” Hence laymen cannot be compelled to pay 
this tax, neither can monasteries or religious houses, 
as they are not benefices. If religious hold or admin¬ 
ister a parish either in their own name or in the name 
of the Ordinary—provided, in this latter case, they 
draw the salary of a real beneficiary—they are obliged 
to pay the tax like the secular clergy and to the same, 
not a larger, amount. In a word, all pastors must pay it. 


SPECIAL CONTRIBUTIONS 


389 


Whether assistants or curates are obliged to pay it, is 
not so easily and clearly to be deduced from the text. 
For, although our parishes, if established in accordance 
with the Code (can. 1410, 1415, § 3), are and have been 
declared benefices, it does not follow that our curacies 
come up to the requisites of benefices; this is a point 
still to be settled. However, since they in one way or 
another share in the revenues of the benefice or parish, 
they appear to be liable to taxation, provided, of course, 
that the amount demanded is in strict proportion to the 
salary drawn, and that it is less than the amount paid 
by the pastors. We repeat that, since laymen cannot 
be compelled to pay this tax, it is evident that the 
parish as such is not liable to payment, because the 
Code expressly says that only beneficiaries may be 
taxed, and the parish as such is not a beneficiary in the 
canonical sense of the term. Furthermore, since bene¬ 
ficiaries are liable as such, it is evident that the pastors 
or curates cannot be taxed on their private means, such 
as patrimonial or quasi-patrimonial property, income, 
or revenues. Only what is connected with or flows 
from the benefice is subject to this tax. Besides, 
canonists as well as a decision of the S. C. Concilii make 
it plain that poorly salaried beneficiaries, whose income 
is barely sufficient for a decent livelihood, cannnot be 
compelled to pay the subsidy demanded. 2 

Attention should be paid to the term “beneficiaries” 
also for another reason. Where there is no proper 
canonical division of parishes with set boundaries, it 
would be rather difficult to apply the term “benefice” 

2 Here the text of the S. C. Concilii, in Gerundinensi, 27 Feb., 
1663, quoted by Card. Gasparri: /. “An e piscopi pingues redi- 

tus habentes . . . possint exigere subsidium caritativuni a suis 


390 


TEMPORAL POSSESSIONS 


to a parish. The consequence is quite evident: in 
dioceses which have no such division, there are no bene¬ 
fices in the canonical sense of the word, hence no bene¬ 
ficiaries, and, therefore, there is no strict right to demand 
such a tax, nor any obligation to pay it. Videant con- 
sides! Finally it will be well to observe can. 216. 

We add that the canonists demand of the bishop 
that he ask the advice of the cathedral chapter (our dio¬ 
cesan consultors) before imposing such a tax. Also the 
vicar capitular (our administrator) sede vacante may levy 
the subsidy; and consequently those who enjoy the same 
power as administrators. 

There is one more question attached to charitable sub¬ 
sidy, viz., that of providing for needy priests. This would 
undoubtedly fall under the heading of can. 1505, in case 
the diocesan funds would be insufficient to make ends 
meet. But in this case what has been said as to the nature 
and extent of this subsidy must logically be applied also 
to the raising of the amount required to cover the def¬ 
icit. Therefore it must be a moderate and extraordinary 
tax to be levied on the beneficiaries, not the parishes. 
But if there is a clerical aid society with its own funds 
and administration,—a society, we mean, which is intended 
to aid secular priests in case of need, it does not appear 
quite just to demand of religious who are pastors contribu¬ 
tions from which they derive no benefit at all, because 

clericis dioecesanis? II. An episcopi, quibus pro exigendo sub- 
sidio caritativo non obstat suflicientia sive exuberantia redituum, 
possint illud exigere nulla urgente causa et inconsultis eorum 
capitulis? III. An possint illud exigere a clericis beneficiatis, 
qui licet aliquos reditus habeant non consistentes in distribution- 
ibus quotidianis, nihil tamen eis superest ultra honestum victum, 
immo tales reditus v\x sunt suihcientes ad praedictum eorum 
victum ? — S. C. resp. ad I, II et III negative ” 


SPECIAL CONTRIBUTIONS 


39 i 


religious are generally taken care of by their respective 
communities. Thereby, as stated, we do not deny that 
the local Ordinary would be entitled to demand of the 
religious beneficiaries, as explained above, the subsidy 
based on can. 1505, and as far as this canon permits, also 
in case the funds of the clerical aid society should run 
so low that an extraordinary tax became imperative, pro¬ 
vided it were moderate. 


Ecclesiastical Pensions 

Can. 1506 forbids Ordinaries to impose any other tax 
besides those mentioned, for the benefit of the diocese or 
a patron (advowee), upon churches, benefices, and other 
ecclesiastical institutions subject to their jurisdiction, ex¬ 
cept on the occasion of their foundation or consecration. 
All other taxes are against the common law (can. 1429) 
and looked upon as either simoniacal or as an unjust 
diminution of benefices. Never can a tax or contribution 
be imposed upon either manual or foundation masses. 

Fixing of Taxes 

Can. 1507 governs the manner of fixing ecclesiastical 
taxes. It should be done at a provincial council or meet¬ 
ing of the bishops, but needs the approval of the Holy 
See to have legal force. The taxes here comprised are 
(a) those levied for the exercise of voluntary jurisdiction, 
i. e., dispensations, commutations (except matrimon¬ 
ial dispensations; can. 1056), and funeral taxes (can. 
1234) ; (b) the executoriae or fees for the execution of 
papal rescripts; (c) charges for the administration of 
the Sacraments and sacramentals. Not included are 



392 


TEMPORAL POSSESSIONS 


taxes imposed for ecclesiastical trials, which are subject 
to the rules laid down in can. 1909. 

Last Wills 

Cans. 1514 and 1515 emphasize the great care which 
the Church has ever bestowed on the faithful administra¬ 
tion and distribution of property left by donation or be¬ 
quest. They are specially intended for executors, who 
are obliged to attend to speedy execution, according to the 
term permitted by civil law. In the business of execution 
they must chiefly attend to the wording of the will. They 
are not allowed to substitute one pious institution for an¬ 
other, unless the document permits them to do so, nor are 
they permitted to apply a legacy “for the poor” to one 
poor person only. Among the poor those of the deceased 
person’s home town should be favored and the most needy 
selected. 

These general rules should also guide the Ordinaries, 
who, according to can. 1515, are the executors of all pious 
gifts, by donation as well as by last will ( mortis causa). 
They may and must, at the canonical visitation, take cog¬ 
nizance of pious bequests, and other executors are obliged 
to render an account to the Ordinaries after they have dis¬ 
charged their office. Every clause which runs counter to 
this right of the Ordinary must be looked upon as non¬ 
existing. 

“Ordinaries” here includes the superiors of exempt 
religious. 

Can. 1516 plainly shows that not only the secular clergy 
but religious, too, may be executors and trustees. If a 
cleric or religious receives a donation or a bequest in 
trust, he must notify his Ordinary of that fact and indi- 


LAST WILLS 


393 


cate to him all property held in trust, movable as well as 
immovable, together with the obligations attached thereto. 
Should a donor have expressly forbidden the interven¬ 
tion of the Ordinary, no religious or cleric can accept 
the bequest or donation. 3 

The Ordinary must insist that the propery held in trust 
is safely invested and watch over the fulfillment of the tes¬ 
tator’s will, according to can. 1515. A safe investment, 
according to Roman practice, is that in land. 

When a religious has received property in trust, the 
Ordinary referred to in § 1 and § 2 of this canon is the 
local Ordinary if the property is destined for a church of 
the town or diocese, or for the inmates of charitable in¬ 
stitutions existing in that town or diocese; in all other 
cases the Ordinary is the superior of exempt religious; 
for only exempt clerical superiors go by the name of 
Ordinaries, according to can. 198. 

To reduce, mitigate, or change testamentary bequests 
is reserved to the Apostolic See, which can proceed only 
for a just and necessary cause. The local Ordinary may 
act only if the founder has expressly granted this power 
to him, and he too is bound by reasons of justice and 
necessity, for both the natural and the divine law, as 
well as positive law, demand that the last will of the 
faithful be conscientiously executed and the money be¬ 
queathed by them expended for those purposes for which 
it was intended. It may not be applied for a seemingly 
better cause, or in a more suitable manner, because such a 
change would frustrate the last will of the testator and in¬ 
jure the Church, since the faithful would hesitate to make 
donations if they were not certain that the money would 
be properly applied. Hence, even the Sovereign Pontiff 

3 S. C. C., Aug. 7, 1909, ( A . Ap. S., I, 766). 


394 


TEMPORAL POSSESSIONS 


is bound by the law of justice and necessity and cannot 
validly make a change or reduction in a will without a 
proportionate cause. 

However, if on account of decreased revenues or for 
other reasons not due to faulty administration, the obli¬ 
gations cannot possibly be complied with, the Ordinary, 
after having heard those concerned, may equitably dimin¬ 
ish the burdens, but must abide by the will of the founder 
as nearly as he is able. From this power is excluded the 
reduction of Mass obligations, which is reserved to the 
Holy See. 


Administration of Church Property 

The local Ordinaries should watch carefully over the 
administration of all church property located in their 
dioceses, except that which has been withdrawn from 
their jurisdiction. If lawful prescription gives the bishop 
the right to administer property otherwise not subject 
to his power, he may make use of this right. The rea¬ 
son is that the bishop has the <{ intentio fundata in iure/ f 
i. e., the original right of administering all diocesan prop¬ 
erty, for the reason that he is the pastor of the whole 
territory. 

Therefore § 2 of can. 1519 provides that the Ordinaries 
should regulate the whole business of the administration 
of diocesan property according to the common law of the 
Church and with due regard to special, lawful customs, 
which are the best interpreters of the law, and to circum¬ 
stances. To this effect, and with these objects in view, 
they may issue, either in synod or outside, particular 
statutes which bind the whole diocese, provided they keep 
within the common law. 

In order that this business be properly attended to, 


CHURCH PROPERTY 


395 


every Ordinary shall establish in his episcopal city a 
board of administrators, consisting of the president, who 
is the bishop himself, and two or three capable men, expe¬ 
rienced also in civil law if possible, to be appointed by 
the Ordinary after having heard the advice of his chap¬ 
ter (or consultors). Should there be in the diocese a 
particular law or custom which provides an equally effec¬ 
tive mode of administration, this may be retained. But 
some kind of a council ( consilium ) there must be, ac¬ 
cording to the admonition of the wise man: “Do noth¬ 
ing without counsel, and thou shalt not repent when 
thou hast done.” 

Excluded from this council of administrators are all 
relatives in the first and second degree ( affines et con¬ 
sanguine! ) of the local Ordinary, unless the Apostolic See 
should grant a dispensation to the contrary. 

Local Ordinaries shall not fail to call the council of 
administrators as often as any business of importance is 
to be transacted. Such business would be: alienation of 
property, for which a papal indult is required, the effective 
exercise of supervision over the administration of tem¬ 
poralities, and the rendering of accounts to be given an¬ 
nually by those who are obliged to do so. But the vote 
of these administrators is advisory only, unless a decisive 
vote is required in certain cases expressed in law or in 
the charter of a foundation. 

The members of this board must take oath to the 
effect that they will perform their duty faithfully. 

These administrators may be laymen, provided, of 
course, they are Catholics. 

According to Roman as well as ecclesiastical law each 
institution should have an administrator, or, as he was 
formerly called, syndicus. Our Code prescribes the 
appointment of such syndics in addition to the diocesan 


396 


TEMPORAL POSSESSIONS 


board of administrators. For all churches or pious in¬ 
stitutions which have no syndics either by law or charter, 
the Ordinary should choose prudent and capable men of 
good repute to administer the property. The term of 
these administrators lasts three years, unless local circum¬ 
stances make a more or less frequent change advisable. 
It is evident that our American parishes need no special 
administrators, because the parish priests themselves, 
aided by the trustees, administer the property. 

If the charter or the will of the local Ordinary allows 
laymen to take part in the administration of ecclesiastical 
property, the whole administration must nevertheless be 
conducted in the name of the Church, and the Ordinary’s 
right of visitation and of demanding a regular account 
and prescribing the mode of administration must be 
safeguarded. 

Before they assume office, the administrators of church 
property, (a) must take an oath before the local Ordi¬ 
nary or the rural dean, promising that they will perform 
their obligations properly and faithfully; (b) must 
sign an inventory, which must be made accurately and 
distinctly, of all the immovable property, as also of pre¬ 
cious movable goods, clearly described and appraised; 
or accept an inventory already made, which should account 
for things either lost or acquired in the meantime, (c) 
Of this inventory two copies must be drawn up, one of 
which must be kept in the archives of the administrative 
council and the other in the archives of the diocesan court, 
in each of which all changes in the property must be 
duly noted. 

Administrators of ecclesiastical property should dis¬ 
charge their office like a good father of a family; in par¬ 
ticular : 


CHURCH PROPERTY 


397 

1) They should see to it that nothing entrusted to 
their care is lost or damaged; 

2) They shall observe the rules laid down by both 
ecclesiastical and civil law, and the regulations imposed by 
the founder or donor, or by lawful authority; 

3) They shall collect the revenues and fees (produce, 
rent, etc.), at the proper time, guard them safely, and 
use them in accordance with the will of the founder and 
the rules of the charter; 

4) They shall invest the surplus profitably, with the 
consent of the Ordinary, and to the advantage of the 
Church; 

5) They shall keep the books of income and expendi¬ 
tures in good order; 

6) They shall keep the papers and title deeds of 
the church in good order and place them in the archives 
or safe of the church and copies or abstracts in the dio¬ 
cesan archives or safe. 

All administrators, especially clerics and religious, must 
pay their employees a just and adequate wage; they should 
also see to it that the workingmen be allowed a convenient 
time for fulfilling their religious duties; they should never 
distract them from their domestic duties or from habits 
of thrift nor impose upon them more work than their 
strength, age or sex enables them to perform. 

Canon 1525 reprobates any custom contrary to the duty 
of rendering annual accounts to the local Ordinary. This 
law is binding on clerical as well as lay administrators 

(a) Of every church, including the cathedral church, 
and every public oratory, with the exception of churches 
belonging to exempt religious exclusively and solely by 
reason of their own service and for their own purpose, 
without being a parish or incorporated church by way of a 


398 


TEMPORAL POSSESSIONS 


benefice. Parish churches governed by religious must also 
render an account of their administration. 

b) An account must be rendered of any and all chari¬ 
table or pious institutions canonically erected, no matter 
whether governed by secular or religious, even exempt, 
clergymen. Thus, if religious conduct a hospital or an 
asylum of any kind, an account must be given, the reason 
being that such charitable institutions concern the faithful, 
or the Church at large, and are often of the nature of 
foundations connected with a last will. This rule holds 
also concerning institutions under royal protection. 

(c) The syndics of each and every confraternity, with¬ 
out exception, even though affiliated with an archconfra¬ 
ternity in the City of Rome, for instance, that of the 
“Good Death,” and even though it be erected in the 
church of exempt religious, must likewise render an ac¬ 
count to the bishop. Of course, this is to be understood 
only of such confraternities as have revenues of their 
own, and form at least a juridical entity. 

If there is a special statute requiring that accounts be 
rendered to others designated for that purpose, the local 
Ordinary or his delegate must also be allowed to inspect 
the accounts, and all stipulations made for the purpose 
of excluding the Ordinary are void. Thus, if a munici¬ 
pality is entitled to receive the account of a pious founda¬ 
tion, which contains a clause to the effect that the local 
Ordinary be excluded, this clause would be invalid in the 
ecclesiastical court. The same is true of any contrary 
custom that may have crept in. 

Administrators of church property must not institute 
or contest a lawsuit in the name of the church without 
having obtained written permission from the local Ordi¬ 
nary or, in urgent cases, from the rural dean, who shall 
immediately inform the Ordinary when he has granted 


ALIENATION OF CHURCH PROPERTY 399 

such a permission. If they disregard his advice and are 
defeated in the law suit, they are bound in conscience 
and by ecclesiastical law to make up for the loss sus¬ 
tained. The church is not responsible for contracts made 
by an administrator without the permission of the com¬ 
petent superior, unless the contract is favorable. This 
favor ecclcsiae is to be extended to lawsuits as well. 

Contracts—Alienation 

Whatever the civil law of a country determines with 
regard to contracts, general and specific, named and name¬ 
less, as well as payments, shall be observed also in ecclesi¬ 
astical law and with the same legal effects, unless the civil 
laws run counter to the divine law, and, unless the canons 
provide otherwise. 

For the alienation of sacred relics the express permis¬ 
sion of the Holy See is required, according to can. 1281, 
§ 1. All other ecclesiastical property, whether immovable 
or movable, may be alienated under the following con¬ 
ditions : 

i.° An appraisement of the goods must be made by 
conscientious experts; 

2. 0 There must be a just cause, i. e., urgent necessity, 
or evident utility on the part of the church, or piety; 

3. 0 The competent superior must give his permission, 
for without it alienation would be invalid. 

The superior may also prescribe other precautions and 
formalities, as the circumstances of the case may demand, 
in order to prevent damage to the church. 

Canon 1531 rules: 

a) That no thing should be alienated for less than what 
it was appraised at, because this would involve injustice 
and grafting; 

b) That alienation should take place by auction, or 


400 


TEMPORAL POSSESSIONS 


at least by advertisement of a public sale, unless circum¬ 
stances advise the contrary; and the property to be dis¬ 
posed of should, everything being considered, be sold to 
the highest bidder; 

c) That the sum realized from alienation should be 
invested safely and profitably. 

Can. 1532 determines the lawful superior whose per¬ 
mission is required for valid alienation. This superior is: 

1) The Apostolic See, i. e., the S. C. Concilii (can. 250, 
§ 2), if (a) precious things of any kind or amount are to 
be alienated, for they are not precisely appraised in our 
canon; or if (b) property is to be disposed of, the value 
of which exceeds the sum of 30,000 lire (or francs) 
i. e., from about $6,000 to $10,000. 

2) If the value of the property to be alienated does not 
exceed the sum of 1,000 lire (or francs ), i. e., about $200, 
the local Ordinary may proceed after having heard the 
advice of the board of administrators—unless the property 
is of very little value—and with the consent of those con¬ 
cerned. 

3) If the value of the property to be alienated is be- 
tzvcen 1,000 and 30,000 lire (or francs), the local Or¬ 
dinary may proceed, provided a threefold consent has been 
obtained, vis.: (1) that of the cathedral chapter (or dio¬ 
cesan consultors), which must be given collegialiter, that 
is, by vote at a meeting; (2) the consent of the board of 
administrators, and (3) that of the persons concerned. 
The penalties are stated in can. 2347. 

4) If the property to be alienated is divisible, the parts 
which have been previously alienated must be mentioned 
in the petition for permission or consent, under pain of 
nullity. Hence no concealment is admissible, because it 
may endanger the validity of the transaction. 


DONATIONS 


401 


The rules here established concerning alienation proper 
apply also to any kind of contract by which the status of 
a church might be deteriorated. 


Donations 

Prelates and rectors are allowed to make only small and 
moderate donations from the movable property of the 
church, according to legitimate local custom; large dona¬ 
tions may be made only for a just reason, as reward, piety, 
or Christian charity. Donations made against this rule 
may be revoked by the successors. 

Donations made to rectors of churches, secular or relig¬ 
ious, are supposed to be made to the church, unless there 
is reason to presume the contrary. 

In order lawfully to refuse a donation made to a church, 
the rector or superior of the same needs the permission of 
the Ordinary. An illegal refusal, if a loss is caused 
thereby, justifies an action for restitutio in integrum or 
indemnity. 

The Code does not permit a donation made to a church 
and lawfully accepted by the latter, to be revoked on ac¬ 
count of ingratitude or enmity on the part of the prelate or 
rector. 

If, for some lawful reason, church property has to be 
pawned or mortgaged, or debts have to be made, the law¬ 
ful superior who is entitled to grant permission, accord¬ 
ing to can. 1532, shall first hear all concerned, i. c., the ad¬ 
ministrators and rectors, or syndics, and endeavor to pay 
off the debt as soon as possible. 

For this purpose the Ordinary should determine the 
amount of the annual payments. If the church has fixed 
revenues, this may be done by subtracting the necessary 





402 


TEMPORAL POSSESSIONS 


amount therefrom. But if no fixed endowment or rev¬ 
enues are available, as is the case with most of our 
churches, a “sinking fund” should be established to wipe 
out the debt. 

When sacred things are sold or exchanged, the fact that 
they are consecrated or blessed shall not influence their 
valuation, i. e. } no higher price can be lawfully charged 
for a consecrated or blessed object merely because it is 
consecrated or blessed. To do so would be simony. 

The administrators may convert notes payable to bearer 
into other titles or investments which are safer than, or 
at least equally safe and profitable as, the former. 

In doing so, however, they must avoid every species of 
trading or speculation, and, besides, obtain the previous 
consent of their Ordinary, of the diocesan board of ad¬ 
ministrators, and other interested persons. 

Immovable church property cannot lawfully be sold or 
leased to the administrators themselves, or to persons re¬ 
lated to them in the first or second degree either by blood 
or marriage, without special permission from the local 
Ordinary. 

Leasing or Renting 

Land belonging to a church should not be rented except 
by public auction or announcement, as stated in can. 1531, 
§ 2, and exact conditions must be laid down in the lease 
or rent contract as to the boundaries, appropriate methods 
of cultivation, payment of rent, and the necessary safe¬ 
guards for the fulfillment of these conditions. 

Anticipated payments being excluded according to can. 
1479, the following rules must be observed in leasing or 
renting church property: 

1) If the rental exceeds 30,000 lire (or francs) and the 


PIOUS FOUNDATIONS 


403 


lease is made for more than nine years, a papal indnlt is 
required; if the contract is made for less than nine years, 
the local Ordinary may give the permission, with the con¬ 
sent of his cathedral chapter (or diocesan consultors), 
the board of administrators, and those interested. 

2) If the rental is between 1,000 and 30,000 lire (or 
francs) and the lease runs more than nine years, the local 
Ordinary may grant permission, with the consent of those 
just mentioned; but if the contract is made for less than 
nine years, the local Ordinary has only to consult with the 
board of administrators and obtain the consent of those 
concerned. 

3) If the rental is less than 1,000 lire (or francs) and 
the contract reads for more than nine years, the local 
Ordinary has to consult with the board of administrators 
and obtain the consent of those concerned; if the contract 
is for nine years or less, the administrators themselves 
may sign the contract and notify the Ordinary. 

Pious Foundations 

The term “pious foundations” signifies temporal goods 
conveyed to some ecclesiastical juridical person with the 
perpetual or long-continued obligation to say Masses or 
to perform certain ecclesiastical functions or works of 
piety or charity, in consideration of the revenues received 
from said endowment. Every foundation, after it has 
been duly accepted, has the nature of a bilateral contract: 
“do ut facias Hence can. 1545 demands that the local 
Ordinaries should fix the minimum of endowment below 
which no pious foundation may be accepted, as well as the 
manner in which the interest is to be distributed. This 
procedure is somewhat similiar to fixing the amount of 
mass stipends. 


404 


TEMPORAL POSSESSIONS 


Canon 1546 commands that no more obligations be ac¬ 
cepted than can be complied with, and that none be ac¬ 
cepted for less than the customary tax. The written con¬ 
sent of the local Ordinary is required for the acceptance 
of foundations by ecclesiastical persons. This consent 
should never be given unless the Ordinary is certain 
that the institution is capable of fulfilling the new as well 
as any old obligations it has assumed or is about to as¬ 
sume. The Ordinary shall also see to it that the consider¬ 
ation is in proportion to the obligations, according to local 
custom. 

All money and movable property assigned as an en¬ 
dowment, must be deposited in a safe place, to be desig¬ 
nated by the local Ordinary. This, with us, is generally 
a bank. Titles and other valuable papers may be put in 
a safety vault. If stock or produce were offered, the 
easiest way would be to sell them. 

The Ordinary shall then consult with those interested, 
i. e ., the founder or his heirs, those who have accepted 
the foundation, and the diocesan board of administrators, 
as to the safest and most profitable way to invest the 
property for the benefit of the foundation. Each invest¬ 
ment of this kind must be accompanied by express and 
specific mention of the obligation resting on the investment. 

Pious foundations, even when made orally only, must 
be set down in writing; one of the records must be kept 
in the diocesan archives, the other in the archives of the 
institution which is obliged to fulfill the obligation. 

In every church a list of the obligations arising from 
pious foundations must be kept in a safe place. 

Besides the book for manual stipends, mentioned in 
can. 843, § 1, there must be another, kept by the rector, 
in which each and every obligation, whether perpetual 


PIOUS FOUNDATIONS 


405 


or temporary, is duly entered, as also the record of ful¬ 
fillment (when a mass was said) and the amount of the 
alms,—so that an accurate account may be rendered to 
the local Ordinary. 

As to pious foundations made and accepted by churches 
belonging to exempt religious, even if they be parish 
churches, all the rights and duties of the local Ordinary 
mentioned in canons I545-I549, devolve on the major 
superior exclusively, according to the constitutions of the 
respective institute. 

It may be added that the Constitution “Nuper” of In¬ 
nocent XII, from which these laws are chiefly taken, re¬ 
vokes and annuls all contrary privileges granted to any 
order. 

The reduction of obligations arising from pious foun¬ 
dations is reserved to the Apostolic See, unless the char¬ 
ter contains an express provision to the contrary and with 
due regard to can. 1517, § 2, which admits the reduction 
of some foundations under certain conditions, but ex¬ 
cepts masses. 

Here is a list of Faculties which the S. C. of the Council 
is wont to give. 

1. To grant, for a space of five years, a reduction of 
perpetual masses, if the revenues have been diminished 
and no one can legally and conveniently be compelled to 
increase the original stipend. The reduction is to be 
made in proportion to the amount of stipends in vogue 
in the respective diocese. The priests benefited by the 
reduction must annually notify the diocesan chancery of 
the fulfillment of the reduced obligations (see can. 1550). 

2. To grant, for a space of five years, a transfer of 
masses which, according to the foundation-charter, should 
be said on certain days or altars, or in specified churches, 


40 6 


TEMPORAL POSSESSIONS 


within the same diocese, provided there be a real need for 
such transfer, and provided that divine worship suffer no 
curtailment therefrom and the people experience no in¬ 
convenience. From this grant are excluded foundation- 
masses which can easily be said by increasing the stipend. 

3. To transfer, for a space of five years, excess masses 
to another diocese, if care be taken that the greater number 
be said in the diocese and, for the rest, the prescriptions 
of the Code be observed. But the Code has no prohibi¬ 
tive clause as to sending Masses outside the diocese or as 
to where they must be said; only rules are given as to 
certain precautions (see can. 837-840). 

4. To grant permission to begin “anticipating” Matins 
and Lauds at one o’clock p. m. when there is a reasonable 
cause. This faculty may be usefully inserted in the 
diocesan faculties. 

5. To allow alienation of church property to the amount 
of $10,000 in the U. S., and 15,000 pesos in South Amer¬ 
ica. The Holy See must, however, be informed of the 
alienation made which, besides, is only permissible in case 
of necessity and when no time is left for recourse (see 
can. 534 and 1532). In such a case can. 81 may be 
applied. 

In n. 3, transferring Masses to another diocese, masses 
are understood which should be said in that particular 
diocese by the intention of the donor. Hence, the faculty 
does not insinuate that superfluous masses, which the 
donor has left to the prudent judgment of the priest to 
say anywhere, may not be said somewhere else. For the 
Ordinaries have no power to make such a restriction, 
this being not only beyond but against the Code, as the 
same S. C. has decided. 4 

4 S. C. C, Feb. 19, 1921 (A. Ap. S., XIII, 228 f.) 


PIOUS FOUNDATIONS 


407 


It may appear strange to our modern notions of busi¬ 
ness and money values to read of only $10,000 for 
alienation. However, the law as well as the restrictions 
are very wise and practical, and taken from life. For 
the Church is not a “business proposition,” nor a bank 
or stock company. When a “crash” comes, the outside 
world is “tickled” to see churches and clergymen lose, 
the indignation against superiors who strained the “wid¬ 
ow’s mite” is sounded in unkindly epithets, and those who 
are wont to sneer at laws arise in arms. 




PART IV 


ECCLESIASTICAL TRIALS 

Ecclesiastical trials constitute the judiciary power of 
Ordinaries. The Code has distributed the entire subject 
matter into three parts, the first of which lays down the 
rules for trials in general, the second concerns the pro¬ 
cess of canonization, and the third regulates the pro¬ 
cedure in some particular affairs. Of the first and second 
part we shall only touch on a few important points, to give 
more extensive consideration to the matrimonial and ad¬ 
ministrative procedure. 

SECTION I 

TRIALS IN GENERAL 

The Code defines an ecclesiastical trial, or indicium 
ecclesiasticum, as the lawful discussion and settlement 
before the ecclesiastical court of a disputed matter of 
which the Church is entitled to take cognizance. 

Such are matters which concern faith and morals, 
the Sacraments and sacramentals, divine worship and 
ecclesiastical offices and persons, especially the clergy. 

The Competent Judge 

As there is a competent court, so there is a privileged 
court, in other words, there is ordinary and extraordinary, 
viz, } reserved competency. 

408 


CASES RESERVED TO THE H. SEE 


409 


On account of the primacy of the Roman Pontiff, the 
Holy See may be appealed to in any civil or criminal case, 
in any stage or instance, from any phase a trial may have 
taken, and from anywhere in the whole Catholic world. 
But this recourse to the Apostolic See does not suspend 
the exercise of the jurisdiction of the ordinary or delegated 
judge who has commenced a trial by issuing the lawful 
summons. Suspension of jurisdiction is attached only to 
an appeal, properly so-called. Hence in case of mere 
recourse, the judge-in-ordinary may proceed with the trial 
and pronounce final sentence, unless he has been duly in¬ 
formed that the Apostolic See has called the case before 
its own court. 

Besides, the Roman Pontiff reserves to himself the so- 
called causae maiores as follows (can. 1557) : 

(a) The cases of actual rulers of nations, their sons 
and daughters, and proximate successors, provided, of 
course, their cases are brought before the Supreme 
Pontiff, as often happened when rulers still called them¬ 
selves Christian; 

(b) The cases, civil as well as criminal, of cardinals 
and legates of the Apostolic See; 

(c) The criminal cases of bishops, titular as well as 
residential. 

To the tribunals of the Apostolic See are reserved: 

(a) The civil cases of residential bishops, with the ex¬ 
ception mentioned in can. 1572, § 2; 

(b) All cases of dioceses and other exempt corpora¬ 
tions immediately subject to the Roman Pontiff, such as 
exempt religious organizations and monastic congrega¬ 
tions. If the Roman Pontiff calls other cases before his 
tribunal, that judge is competent whom he designates. 
This happened in the case of the English Ladies founded 
by Mary Ward. 




4io 


ECCLESIASTICAL TRIALS 


The Local Ordinary 

Aside from cases reserved to the Roman Pontiff or the 
Apostolic See, or cases appealed to this supreme court, 
all cases must be tried by the local Ordinary, who may ex¬ 
ercise this power personally or by proxy, but must pro¬ 
ceed according to the rules laid down in the following 
canons. This is the law, new as well as old, for every 
diocese. Exempt religious, of course, are bound to go 
before this tribunal only in cases defined by law (can. 
616) ; otherwise their competent judge is the respective 
superior (can. 1579). 

If a case concerns the rights or temporal property of 
the bishop, of the episcopal mensa (revenues), or of the 
diocesan court, it may, with the consent of the bishop, 
be tried in a body by the diocesan tribunal, consisting of 
the official and two senior synodal judges, or it may be 
brought before the court of the immediate superior. 

The antiquiores are those longest in office, and the im¬ 
mediate superior would be the metropolitan. If the latter 
is a party to the trial, the immediate superior is the Dele¬ 
gate Apostolic, provided his instructions give him that 
power; otherwise, Rome. 

In order to establish the competency of two or more 
Ordinaries who may perhaps be entitled to judge, the law 
lays down the following rules: 

i.° All actions concerning forcible deprivation or 
disseissin, of which more under can. 1698, where the term 
spolium recurs; 

2. 0 All cases touching benefices, even though non- 
residential, which must be decided before the Ordinary in 
whose diocese the benefice is located; 

3. 0 All cases of administration, which must be tried 


THE DIOCESAN COURT 


411 

before the Ordinary in whose diocese the administration 
was conducted; 

4. 0 All cases in which pious bequests or legacies are 
involved, must be tried before the Ordinary in whose 
diocese the testator had his domicile, unless the question 
turns about the mere execution of a legacy, when it may 
be settled according to one of the following reasons of 
competency. 

By reason of domicile or quasi-domicile, under can. 
1561, anyone may be sued before the local Ordinary, who 
in this case also has jurisdiction over an absent subject. 
This court is the chief, ordinary, and natural forum for 
trying the defendant, even though he be absent from the 
diocese. If the plaintiff be absent, the summons suffices 
to render him in contempt in case he does not appear. 

This forum concurs with any other mentioned, except, 
of course, the one spoken of in can. 1560. 

Besides these reasons establishing competency, the Code 
acknowledges the following: the reason of res sita, 
or location of the litigious object; the reason of contract, 
and crime and connection. 

The diocesan court must follow the rules laid down in 
the Code for trials in general (can. 1555, § 2). 

Concerning the officials and board of judges the Code 
rules that every bishop is obliged to choose an official with 
ordinary judiciary power. This office is distinct from 
that of the vicar-general. Only in case the diocese is small, 
and there is not much business, may the bishop entrust the 
vicar-general with this office. How small or how large 
a diocese must be to require an officialis, is difficult to say; 
it depends upon territorial extent as well as upon the 
number of the Catholic people and clergy. 

The officialis and the bishop form but one tribunal. 
Consequently, no appeal is possible from the one to the 



412 


ECCLESIASTICAL TRIALS 


other, or vice versa. Besides, the ofiicialis cannot render 
judgment in cases which the bishop has reserved to him¬ 
self. There is no doubt some similarity between the 
offices of the vicar-general and the ofiicialis; but there 
is also a difference, for the bishop cannot lawfully curtail 
the power of the vicar-general beyond the cases men¬ 
tioned in law, whilst the power of the ofiicialis is entirely 
subject to his good pleasure. Of course, the bishop has 
to make it clear which cases he has reserved to himself; 
otherwise the ofiicialis may proceed, because his power is 
ordinary. 

The ofiicialis may be given assistants, but their power 
is not ordinary, nor must they be looked upon as quasi¬ 
judges in solidum. At least this seems to us a natural 
assumption because otherwise there would hardly be any 
unity of government. 

The officialis (as well as the vice-ofiicialis) must be 
priests in good standing, doctors of canon law or other¬ 
wise experienced, and at least thirty years of age. They 
are removable at the bishop’s pleasure. Their office does 
not cease during the vacancy of the episcopal see, nor may 
they be removed by the vicar-capitular (administrator). 
But they need ratification by the new bishop. 

When the offices of vicar-general and ofiicialis are held 
by one and the same person, the office of vicar-general, but 
not that of ofiicialis, ceases when the episcopal see becomes 
vacant. If the ofiicialis is elected vicar-capitular (admin¬ 
istrator), he shall appoint another ofiicialis. 

The synodal judges, elected either at, or outside of a 
synod, should be not more than twelve in number. They 
must be priests of approved morals and experts in canon 
law. They may be chosen from another diocese if, to use 
a colloquial expression, the necessary “timber” is not to be 
found in the diocese itself. Their office is delegated by 


DIOCESAN JUDGES 


4i3 


the bishop, by virtue of which fact they may assist in 
handling ecclesiastical trials. 

No discrimination is made between synodal and pro- 
synodal judges because in law the latter are regarded as 
synodal judges pure and simple. One of their preroga¬ 
tives consists in being chosen as counselors by the judge, 
who is entitled to select two of them in every trial. 

Can. 1576, § 1, rules that to a board of three judges are 
reserved the following cases: (a) civil or contentious 
causes turning about the bond of sacred ordination 
{vinculum s. ordinationis; see can. 1993), the marriage tie 
(not mere separation), and the rights and property of the 
cathedral church; (b) criminal cases which concern priva¬ 
tion of an irremovable benefice, which we believe must 
also be applied to the case of privation (not mere re¬ 
moval) of an irremovable pastor; or which concern the 
inflection or declaration of excommunication, which may 
also touch laymen. 

To a board of five judges are reserved all criminal cases 
which involve the penalty of deposition, of perpetual pri¬ 
vation of the ecclesiastical habit, or of degradation. 

§ 2 permits the Ordinary to entrust the collegiate tri¬ 
bunal of three or five with the cognizance of other cases, 
especially such as are more difficult and important by 
reason of circumstances of time, place, or person, or of 
the matter involved, for instance, in a mixed marriage 
when satisfaction is to be decided and the persons con¬ 
cerned are of high social standing. The same rule may 
be applied to clerics who hold important offices and to 
tendencies which are peculiar to a whole province or gen¬ 
eration. 

§ 3 commands the Ordinary to choose the two or four 
judges who constitute the collegiate tribunal together with 
the president, who is no one else than the diocesan ofh - 


414 


ECCLESIASTICAL TRIALS 


cialis, in turn, from among the synodal judges, as, for in¬ 
stance, is done by the Roman Rota, where three proceed 
per turnum. The turnus may be taken either by seniority, 
or one senior and one junior, etc. But the Ordinary may 
depart from this rule if he deems it advisable, and select 
ecclesiastics who are not synodal judges. 

Can. 1577 determines the mode of procedure to be fol¬ 
lowed by the board of judges. They must proceed col - 
legialiter, i. e., in a body, and give sentence by majority 
vote. Thus, if there are three judges, including the offi¬ 
cialise there must be two votes cast for or against a sen¬ 
tence; if five judges vote, at least three votes are required 
to pronounce either an interlocutory or definitive sentence. 

We said, “including the officialis,” for § 2 of can. 1577 
rules that the officialis or vice-officialis is the president of 
the tribunal, and it is his duty to direct the trial and de¬ 
cree what is required for administering justice. Of 
course, he must abide by the general rules prescribed 
by the Code; but, like any other judge, he may follow the 
dictates of reason as long as these do not clash with the 
essentials of justice. 

Although the officialis or vice-officialis is ex officio the 
president of the trial, the bishop himself may preside, and, 
of course, also vote when a sentence is to be pronounced. 
However, since no one should be judge in his own case, 
the bishop is precluded from presiding in all matters con¬ 
cerning himself or his diocesan court, according to can. 
1572, § 2 * Besides, according to canon 1578, it is highly 
advisable that he leave the decision of criminal and con¬ 
tentious (civil) cases, especially those of importance and 
consequence, to the ordinary tribunal presided over by the 
official or vice-official, lest he incur an odium which might 
impair his authority. 

Note should be taken of the beginning of this canon, 


NECESSARY OFFICIALS 


4 i 5 

viz.: “Every contrary custom is reprobated and every 
contrary privilege is revoked.” 

Court of Exempt Religious 

If a dispute arises between individual exempt religious 
of the same order or congregation, the judge of the first 
instance is the provincial, or the abbot of an autonomous 
monastery, provided the respective constitutions do not 
ordain otherwise. 

Unless the respective constitutions provide some other 
mode, a civil case pending between two provinces must be 
tried, in the first stage, before the superior general or his 
delegate; or before the abbot president of monastic con¬ 
gregations if the controversy is between two autonomous 
monasteries. If a quarrel arises either between individual 
religious, or between religious corporations of different 
congregations or orders, or between individual religious 
of non-exempt congregations or lay institutes, or between 
religious and secular clerics or laymen, the judge in the 
first instance is the local Ordinary. The last-named case, 
of course, supposes that both litigants are in the same 
diocese. If they are not in the same diocese, the other 
rules of competency are to be followed, viz., those men¬ 
tioned under can. 1564-1568 (location of the litigious ob- 
; ject, contract, crime, etc.). 

Necessary Officials 

At every process or trial there must be present a notary, 
who at the same time acts as secretary. No papers or acts 
are valid unless written, or at least signed, by him. This 
latter clause permits the use of a typewriter. The use of 
a rubber stamp is not admissible for the signature. 



416 


ECCLESIASTICAL TRIALS 


The notary must take down in writing the depositions 
of the witnesses who are present, as well as the answers 
sent in from other courts, which were asked for by the 
litterae rogatoriae. 

The notary must be chosen by the judge, before the trial 
begins, from among the notaries lawfully engaged in 
practice—in Rome they have to undergo an examination 
and are formally admitted to practice—unless the Ordi¬ 
nary has appointed one for that special case. 

Each diocese should have its prosecuting attorney and 
its defensor vinculi. 

The prosecuting attorney (promotor iustitiae ) is ap¬ 
pointed for civil cases which, though perhaps of a private 
nature, may, in the Ordinary’s view, affect the welfare 
of the diocese or the public good ( bonum publicum ), 
Thus, for instance, a quarrel between two clergymen about 
a benefice or office may scandalize the whole diocese. 

The promotor iustitiae also functions in criminal cases 
which, as already stated, almost exclusively concern 
clergymen. 

If these two officials are not summoned to trials which 
require their presence, all the acts arc null and void, unless 
the officials in question were actually present, even though 
not summoned. Hence actual presence is required, not a 
summons. In civil matters the promotor iustitiae may be 
summoned by the instructor processus, but his absence 
would not invalidate the proceedings, whereas in criminal 
cases his presence is absolutely required. The presence 
of the defensor vinculi is indispensable in all trials con¬ 
cerning the marriage bond or the validity of an 
ordination. 

However, if the promotor and the defender, though 
summoned, were not present at one or the other hearing, 
the validity of the proceedings is not impaired, but these 


COURT OF APPEAL 


4 i 7 


officials may inspect the minutes afterwards, in order to 
make such remarks as they may deem necessary or oppor¬ 
tune, either orally or in writing. 

One and the same person may be promotor and de¬ 
fender, unless a multiplicity of affairs and cases prevents, 
as may happen in large dioceses, or when cases are tried 
by several courts, or in different places at the same time. 

The offices of promotor and defender may be held for 
all cases that may arise (ad universitatem causarum ) or 
one may be appointed for each individual case (can. 
1588). Those elected for all cases do not lose their office 
during the vacancy of the episcopal see, nor may they be 
removed by the vicar-capitular; they need, however, the 
approval of the new prelate. Besides, the bishop may re¬ 
move them from office for any just cause (can. 1590). 

Court of Appeal 

Appeal from the court of a suffragan bishop lies to 
the metropolitan. If a case was tried in the first instance 
by the metropolitan court, appeal lies to the court of that 
local Ordinary whom the metropolitan, with the approval 
of the Holy See, has chosen once for all as court of ap¬ 
peal. 

The court of appeal must be established in the same 
fashion as the court of the first instance; hence the 
collegiate board with the official and vice-official must 
be constituted also in courts of appeal, and the same rules 
proportionately must be observed in the proceedings. If 
the case was tried collegialiter by the first court, it must 
be tried collegialiter also by the court of appeal; if three 
judges functioned in the lower court, three must act in 
the court of appeal; if five in the first, also five in the 
second instance. 


4i8 


ECCLESIASTICAL TRIALS 


Delegated Judges 

As to delegated judges it may be well to briefly state 
what the Code (can. 199-207) rules concerning delegation 
of jurisdiction in general: 

1. As to the delegation itself: Ordinary jurisdiction 
can be delegated wholly or in part, unless otherwise pro¬ 
vided in law. Jurisdiction delegated by the Holy See 
may be subdelegated either habitually or for a specified 
act, unless the delegation was given for personal reasons 
or further delegation is expressly prohibited. Jurisdiction 
delegated by prelates inferior to the Pope can be subdele¬ 
gated only in case the jurisdiction over all matters has been 
delegated, and then only for individual cases. Other¬ 
wise the power to subdelegate must be expressly men¬ 
tioned, as is the case, for instance, with some faculties 
which our bishops and the Vicars Apostolic receive and 
which directly mention the power of subdelegating. 

2. As to the exercise of delegated jurisdiction: Judi¬ 
cial jurisdiction—contentions and criminal cases which re¬ 
quire the formalities prescribed in the Fourth Book of 
the Code—either ordinary or delegated, can, as a rule, not 
be exercised in one’s own behalf or outside one’s territory. 
Furthermore, the delegate who exceeds the limits of his 
mandate, either concerning objects or persons, acts inval- 
idly. If several delegates are chosen in solidum, the 
whole jurisdiction resides in each one, and each may 
therefore decide the case by himself without the coopera¬ 
tion of the other; but if the several delegates are appointed 
as one body (coliegialiter) , all have to proceed conjointly 
in order to act validly. This is the case concerning the 
board of judges of three, respectively five, mentioned in 
can. 1576, 


DELEGATED JUDGES 


419 


3. According to can. 209, the Church supplies ( supplet 
ecclesia ) jurisdiction in the internal as well as external 
forum when a common error or a positive and probable 
doubt either of law or of fact arises. 

4. A judge delegated by the Holy See may avail him¬ 
self of the assistance of the officials of the court of the 
diocese in which he is to judge; but, unless his rescript 
reads otherwise, he may choose or take to himself whom¬ 
soever he pleases. 

Judges delegated by the local Ordinaries are bound 
to employ the officials of the diocesan court, unless the 
bishop, for a weighty reason and in an individual case, 
decides to appoint special and extraordinary officials. 

It may here be briefly stated what are the essentials of 
a trial. 

Every trial consists of two elementary parts, the per¬ 
sons concerned and the legal process itself. 

1) The persons are the judge or board of judges, the 
plaintiff, and the defendant, the assistants, viz., the notary, 
the counsel for defence, and other assistants, besides, in 
certain cases, the defensor vinouli and the promotor 
justitiae. 

2) The legal process consists of the bill of complaint, 
the summons, the means of evidence (proofs, witnesses, 
oath, etc.), inclusive of grant of dilatory terms and ex¬ 
ceptions, and finally, the sentence from which, exceptis 
excipiendis, an appeal may be taken. 

The Sentence 

When a board of judges has to pronounce sentence, the 
procedure is as follows: 

a) The presiding officer determines the day and the 
hour when the judges shall meet for deliberation. The 


420 


ECCLESIASTICAL TRIALS 


place for the meeting is the court room, unless circum¬ 
stances make it advisable to choose another locality. 

b) On the day appointed each judge shall bring with 
him the conclusions he has arrived at in the case, together 
with a statement of the motives that prompted them. 

All this must be done in writing and inserted in the 
acts of the trial, but kept secret. Each judge must state 
the reasons for his opinion or conclusions in facto et 
iure. The phrase in facto means that the conclusions 
must remain within the writ of complaint, or concern 
precisely this case and no other; the reasons dc iure may 
be applied to the law in general as well as to any specific 
right on which the plaintiff based his claim; this is also 
called in causa et actione. Hence the sentence must, as 
the canonists say, conform to the libeltus and to the law 
in general. 

c) After the conclusions of each judge have been read 
by the ponens or referee, and by the judges according to 
precedence, a moderate discussion shall take place under 
the supervision of the presiding judge, in order more 
accurately to determine the dispositive part of the 
sentence. 

d) Each judge is permitted to change his conclusion 
in the course of this discussion, because the discussion 
may convince him that he was in error, either in facto 
or in iure. 

e) If the judges are unwilling or unable to arrive at 
a definite sentence, another discussion may be held, but 
not later than eight days after the first. 

If but one judge is sitting on a case, he must work 
out the sentence for himself; but in a board the president 
may entrust one of the judges with the office of ponens, 
to draft the sentence in writing (can. 1584). 


THE SENTENCE 


421 


1. The sentence must contain an invocation of the Di¬ 
vinity. 

2. The following names must be set down in order: the 
names of the judge or tribunal, i. e., the board of judges; 
of the plaintiff, defendant, proctor, together with their 
domiciles; of the fiscal promotor and the defender, pro¬ 
vided they took part in the trial. 

3. It must contain a brief statement of the case to¬ 
gether with the arguments or conclusions of the parties. 

4. Then follows the dispositive part of the sentence, 
preceded by a statement of the motives which prompted 
it. 

5. At the bottom or end of all these statements follow 
the day and the place when and where the sentence was 
drafted, and the signatures of the judge or judges and the 
notary. 

All these rules, says can. 1875, apply chiefly to definitive 
sentences, but they should be observed also with regard 
to interlocutory sentences, if the nature of the incidental 
question calls for or permits it. 

The sentence thus drafted should be published as soon 
as possible. How soon, is not expressly stated; but the 
phrase generally means after a short interval of not more 
than eight days. 

The manner in which the sentence may be published is 
threefold: 

a) By summoning the parties to hear the sentence 
solemnly pronounced by the judge sitting in court; 

b) By notifying the parties that the sentence is ready 
at the chancery of the court and leave is granted to read 
it and have a copy made; 

c) By sending a copy of the sentence to the parties 
through the public carrier, where this is customary. 


422 


ECCLESIASTICAL TRIALS 


The Code forbids appeal in nine cases, two of which 
affect the person of the judge, one the form of the sen¬ 
tence, and the rest its matter. Appeal is inadmissible, 
therefore, 

1. ° From a sentence of the Supreme Pontiff or the 
Signatura Apostolica. The Roman Pontiff is the high¬ 
est judge of the universal Church, and therefore no ap¬ 
peal lies from his sentence. Appeal from the Signatura 
Apostolica is inadmissible because of its office and power. 
An appeal in the proper sense is inadmissible also from a 
sentence of any of the Roman Congregations, which, how¬ 
ever, decide not judiciary but disciplinary matters, and 
hence are not especially mentioned. 

2. ° From the sentence of a judge who took cognizance 
of the case in virtue of papal delegation with the clause, 
<( appellatione remotci,” which forbids an appeal. 

In these two cases only one remedy is open, namely, 
restitutio in integrum (see can. 1905-1907). 

Here may be mentioned the penalty incurred by those 
who appeal from a sentence of the Pope to a general 
council: it is excommunication speciali modo reserved to 
the Holy See. 

3. 0 From a sentence which is null and void, as may 
be seen in can. 1892 f., because an invalid sentence is no 
sentence at all, and an appeal always presupposes a valid 
sentence. 

4. 0 From a sentence which has passed into a res iu- 
dicata, as seen in can. 1902 f., unless the sentence has 
been executed with excessive rigor. 

5. 0 From a definitive sentence which has been pro¬ 
nounced in virtue of a decisive oath, because of the sacred¬ 
ness of the oath and on account of a species of contract. 

6.° From a decree or interlocutory sentence of the 
judge, which is not definitive, unless coupled with an ap- 


APPEALS 


423 


peal from a definitive sentence, when an appeal is per¬ 
mitted by reason of the connection. Otherwise not, ne 
procedatur in infinitum. 

7 ° From a sentence pronounced in a matter for which 
the law provides a speedy settlement, as against non¬ 
resident clerics, or in case of appointment to office. 

8.° From a sentence against a contumacious person 
who has not purged himself of his contumacy, according 
to can. 1842 ff. (“quia contumax non appellate’) 

9 *° From a sentence pronounced against one who has 
given a written declaration that he will not appeal, be¬ 
cause this declaration is equal to a contract. 

The appeal must be prosecuted before the judge to 
whom it was directed, within a month from the date when 
it was lodged. 

But the judge from whom the appeal was made, may 
fix a longer term for the prosecution of the case appealed. 
The judge ad quern is not determined here, but the rule 
is that he should be the one immediately superior. Hence 
from the diocesan court appeal should be taken to the 
metropolitan court. However, this latter may lawfully 
be omitted if an appeal is addressed to Rome. From 
the vicar-general to the bishop no appeal is admissible. 

In order to prosecute the appeal it is required and 
suffices that the higher court be implored to change the 
obnoxious sentence. A copy of the first sentence and the 
writ of appeal presented to the inferior court must be 
sent to the higher court. In case the party cannot ob¬ 
tain a copy of the sentence from the judge a quo, the 
time “does not run,” i. e., the lapse of one month must 
not be reckoned as fatal. But the obstacle must be re¬ 
ported to the court of appeal, which shall send peremptory 
notice to the lower court, admonishing it of its duty. If 
the appellant should die, or change his personal status, 


424 


ECCLESIASTICAL TRIALS 


or go out of office (see can. 1733) within the term (of 
ten days) granted for putting in the appeal, but before 
the appeal was actually made, the sentence must be no¬ 
tified to those concerned, and the term for appeal runs 
from the day of the notice. If the case, as stated above, 
occurs after the appeal has already been made, the appeal 
must be made known to the parties concerned, and the 
term (of ten days) runs from the day of the notice 
given (and, we suppose, received). 

The proper effect of an appeal may be suspensive or 
devolutive. The suspensive effect of an appeal consists 
in stopping the execution of the sentence or suspending 
its effect. It is, therefore, not a quashing of the sentence, 
but merely a putting off. Hence whatever is attempted 
against or during a suspensive appeal, is revocable and 
considered as attentatum, wherefore the axiom must be 
applied: “Lite pendente nihil innovctur.” The regular 
or usual effect of each and every appeal is suspensive, 
unless the law states the contrary, and with due regard to 
can. 1917, § 2. 

The devolutive effect of an appeal consists in this, that 
the superior judge draws the whole case before his court 
and decides whether or not the appeal is to be admitted, 
but the sentence takes effect or is carried out even though 
the merit of the issue is still pending. An example may 
be taken from the division of parishes. 

A sentence is incurably null in the following cases: 

a) When it has been rendered by an incompetent judge, 
or, if there was a board of judges, by a number less 
than prescribed by law. And here it must be borne in 
mind and emphatically stated that according to can. 1576 
three judges are required for ordination and matrimonial 
cases, and for some criminal cases of removal or excom¬ 
munication; whilst five judges must pronounce sentence 


APPEALS 


425 


in important criminal cases of deposition and degradation. 
The consequences involved are too serious to overlook this 
ruling; for a sentence in matrimonial cases may be upset 
because of the lack of the number of judges required by 
law. 

b) When the sentence has been pronounced on parties 
one of whom was not entitled to bring suit in an eccle¬ 
siastical court (“non habet personam standi in iudicio”; 
see can. 1646-1654). 

c) When one has prosecuted a case in another’s name 
without being commissioned to do so (sine legitimo 
mandato). Hence a proctor, counsel, or administrator 
(cfr. can. 1520) cannot prosecute validly without a spe¬ 
cial commission. 

The Code determines very clearly when a res becomes 
iudicata, namely: 

i.° After tzvo uniform sentences have been pronounced 
on the same case, i. e. } in the first and second instance, 
or in the second and third instance. 

2. 0 After a sentence which has not been appealed within 
the time granted by law. The same holds good when 
a sentence, though appealed to the judge who pronounced 
it, was not prosecuted at the court of appeals. 

3. 0 After one sentence, in cases in which no appeal 
is admitted, according to can. 1880. Certain cases never 
pass into the stage of adjudged matter because they afifect 
the public welfare, which can. 1903 connects with the 
status personarum, or the personal state of the litigants, 
which certainly afifects the clerical, religious, and mar¬ 
ried state. Therefore sentences passed on the validity of 
ordination, of religious profession, and of marriage do 
not become res iudicatae, even though all the requisites of 
can. 1902 are verified. 

The execution should be carried out, either personally 


426 


ECCLESIASTICAL TRIALS 


or through a delegate, by the local Ordinary of the diocese 
in which the trial was prosecuted in the first instance. 
If he refuses or neglects to put the sentence into effect, 
the interested party may demand execution from the 
court of appeal, which may execute the sentence ex officio 
in case of refusal or neglect of the lower court. 


Criminal Trials 

1. The crimes subject to criminal procedure must be 
public. A crime is defined in can. 2195 as an external 
and a morally imputable violation of the law, to which 
is attached a canonical sanction or penalty, at least unde¬ 
termined. The crime is public if it is already divulged 
or has been committed under circumstances which make 
it liable to be divulged (can. 2197, n. 1). 

2. Exempted from criminal procedure are the cases for 
which other penalties are sanctioned in law. These are: 

a) Procedure against non-resident clergymen; can. 
2168-2175. 

b) Procedure against clerici concubinarii; can. 2176- 
2181. 

c) Procedure against pastors who neglect their pas¬ 
toral duties; can. 2182-2185. 

d) The procedure called ex informata conscientia; can. 
2186-2194. 

These cases, then, are not to be prosecuted in criminal 
form, but in the manner established by the respective 
canons. 

3. Against crimes which may be prosecuted either in 
the civil or in the ecclesiastical court ( mixti fori), Or¬ 
dinaries should, as a rule, not proceed if the accused 
is a layman and the civil authority is already prosecuting 
him, thus safeguarding the public welfare. 


CRIMINAL PROCEDURE 


427 


4. Penances and penal remedies (can. 2306-2313), ex- 
communication, suspension, interdict, may be inflicted by 
way of a precept, without a trial, whenever the delin¬ 
quency is fully proved. 

Criminal Procedure 

Every criminal procedure involves three essential ele¬ 
ments —the accusation, the trial, and the sentence. With¬ 
out any one of these the whole procedure would be null 
and void. 

The first and most necessary step is the accusation, 
for “where there is no accuser, there is no accused.” 
But there is a notable distinction between judicial ac¬ 
cusation and simple accusation, which is more properly 
styled denunciation. The judicial accusation may be most 
properly called an indictment, which ensures legal action 
or procedure, and is (can. 1934) reserved to the fiscal 
promotor, to the exclusion of all other persons, even the 
local Ordinary. Hence the judicial accusation can be 
lodged only by an official who is the promotor iustitiae. 

Different from an indictment is simple denunciation, 
or, as we may call it for brevity’s sake, the warrant. 
Canon 1935 defines the right and obligation of denun¬ 
ciation as follows: 

1. Every Catholic has the right to denounce the crime 
of another, either (a) to demand satisfaction or indemnity, 
or (b) for the sake of justice, i. e., that scandal may be 
repaired or evil counteracted. In the first case the motive 
is personal interest, and the case should therefore be 
classified among torts (such as libel and damage suits). 
In the second case the intention of the accuser is the 
restoration of justice, which suffers through any crime. 

2. The obligation of denouncing another becomes ur- 


428 


ECCLESIASTICAL TRIALS 


gent when (a) one is obliged to do so by law, or (b) 
by a special precept, or (c) in virtue of the natural law, 
which dictates that every danger to faith and religion 
and every menace of public evil should be averted. 

Ad a). The common law makes denunciation impera¬ 
tive: 

i.° Against confessarii sollicitantes ad turpia (can. 
904; 2368, n. 2) ; 

2. 0 When one knows of impediments to the reception 
of holy orders (can. 999) ; 

3. 0 Or of the existence of matrimonial impediments 
(can. 1027) ; 

4. 0 Or of the circulation of dangerous books (can. 

1 397 ); 

5. 0 Or of clergymen and religious being members of 
Masonic sects (can. 2336). 

Ad b). By special precept Ordinaries and religious su¬ 
periors may command their subjects to denounce certain 
crimes or persons suspected of wrong-doing; this, how¬ 
ever, greatly depends on the constitution of each respec¬ 
tive congregation or order. 

Ad c). In virtue of the natural law theologians and 
canonists, though with some shades of variance, hold 
denunciation (judicial, not evangelical) to be obligatory 
on an inquest. 


Inquest 

1. A special inquest is required in cases (a) where the 
crime is neither notorious nor entirely certain, viz., un¬ 
certain as to the fact or its imputability to the person 
denounced, but known only (b) through rumor and 
hearsay, or (c) by semi-official information, viz., de¬ 
nunciation, complaint of damage, general inquiry made 


CRIMINAL PROCEDURE 429 

by the Ordinary, or in any other strictly extra-judicial 
way. 

2. The time for the inquest to be held is before one 
is summoned or judicially cited. 

3. The purpose of the inquest is to ascertain whether 
and on what ground the crime may be imputed. 

4. With regard to the penalty, § 2 of can. 1939 states 
that an inquest must be held whenever a vindictive pen¬ 
alty or censure is to be inflicted— ab homine —or only 
a declaration of sentence is required, viz., a declaration 
that the penalty or censure has been incurred. Com¬ 
paring this text with can. 1935, § 4, it might seem that 
there is a contradiction, but this is not the case. For 
canon 1933 supposes the crime to be certain. Be¬ 
sides, this inquest, as stated, has already given a legal 
turn to the procedure, and therefore legal means are 
required for inflicting the penalty. 

The next question is, Who may act as inquisitor? An¬ 
swer : The local Ordinary, i. e., the bishop or his vicar- 
general, may personally conduct the inquest. The law 
in this case is permissive rather than preceptive, but it 
adds that as a rule the business of holding the inquest 
should be committed to one of the synodal judges. But 
the Ordinary may, for special reasons, choose another, 
who, according to the instructions of the Roman Con¬ 
gregations, should be a learned, righteous, and capable 
priest, or at least a cleric. 

The inquisitor is a delegate, and hence does not re¬ 
main in office permanently, but is chosen for each single 
case ( ad hoc) and needs special delegation for each. 
The conclusion: “N. has been delegated for this case, 
hence he may act also in the next case,” would, therefore, 
be entirely wrong and would nullify the whole procedure. 

The inquisitor is under the same obligations as the 


43 ° 


ECCLESIASTICAL TRIALS 


judge in ordinary, and must therefore give oath that he 
will keep the secret, conscientiously discharge his duties, 
and accept no donations or bribes. 

The inquisitor cannot validly act as judge in the same 
case. The consequence is that a synodal judge chosen 
as inquisitor cannot pro liac vice act also as judge. 

It is hardly necessary to add that the delegation must 
be given expressly, since the office of inquisitor is not 
attached to any particular judiciary office, either that 
of synodal judge, or of counsel, or of auditor, and that 
the delegate must adhere strictly to his commission or 
mandate, the limits of which he may not exceed, if any 
are drawn in the writ. 

The inquisitor should not proceed with the inquest 
until the Ordinary has prudently judged or decided that 
the evidence so far obtained is sufficient to institute a 
formal inquest. Hence it lies with the Ordinary to give 
orders for the inquest. What if the Ordinary doubts 
the sufficiency of the materials thus far collected? He 
may order other secret information to be gathered and 
call in witnesses who knew the incriminated person and 
the accusers, and make them respond under oath to the 
questions put to them. These depositions, of course, 
must be diligently preserved, as they may be of service in 
the trial. 

After the inquisitor has been appointed and informed 
that the evidence at hand is sufficient, the inquest may 
begin. It must always be conducted secretly and cau¬ 
tiously, so that no rumor of the crime is allowed to spread 
abroad, and the good name of no one, delinquent, ac¬ 
complice, or any other person involved, is jeopardized 
(can. 1944). This, of course, implies strict secrecy, not 
only on the part of the inquisitor himself, as stated in 
can, 1941, § 2, but also on the part of all those whose 


CRIMINAL PROCEDURE 


43 i 


assistance he may require for conducting the inquest. 

The inquisitor may call in persons who are acquainted 
with the accused, or with the accusers, or with the case 
in general. The number of the persons that may be 
summoned is not determined. Those who appear may 
and must be put under oath to speak the truth and, 
as stated, to keep the whole proceeding secret. The pro¬ 
cedure for examining these persons is much the same 
as that prescribed for the examination of witnesses (can. 
1770-1781). 

Our text says, “quantum deri potest et natura inquisi- 
tionis patitur.” Hence it would hardly be advisable to 
confront the witnesses. 

The place of the judge is taken by the inquisitor. 

No solemn or public summons is required. 

If the inquisitor deems it prudent to repair to the domi¬ 
cile of the witness, the law does not forbid him. 

In cases of sollicitatio, women may be heard in the 
sacristy or some other unsuspected place. 

If the inquisitor should meet with difficulties, says 
can. 1945, he may consult with the fiscal promotor and 
communicate to him what has been done. But all this 
must be done before the acts of inquisition are formally 
closed. The closing of the inquisitorial acts is required 
in order to mark a stage in the procedure. It is, how¬ 
ever, left to the inquisitor to decide when the acts of 
judicial inquiry are completed, or when the conclusio in 
causa (can. i860) is brought about; although no special 
decree to that effect need be issued. 

After the acts of inquisition are closed, or the finding 
is complete in the judgment of the inquisitor, because 
the evidence is exhausted, he shall formulate his opinion, 
which is generally styled votum, but is here called 
suffragium. This votum, we suppose, should be put into 


43 2 


ECCLESIASTICAL TRIALS 


writing, although the text does not expressly say so. 
Together with this statement the inquisitor shall submit 
his findings to the Ordinary, who has to read the acts 
carefully in order to come to a conclusion in the three 
possible hypotheses with which he may now be con¬ 
fronted. 

Conclusion 

The Ordinary (either the bishop or his vicar-general) 
may entrust the officialis (see can. 1573) with the in¬ 
spection of the acts, but it requires a special mandate 
for each and every case. The Ordinary, then, or the 
officialis, shall issue a decree adapted to the conclusion 
resulting from the inspection of the acts. 

i.° If the denunciation appears groundless, the decree 
must so declare and be incorporated with the acts, which 
are then to be placed in the secret diocesan archives. 

2. 0 If the evidence is insufficient to justify criminal 
prosecution, the acts must be deposited in the secret 
archives of the diocese and the denounced person watched 
as to his conduct, asked concerning his behavior, and, 
if necessary, be served an admonition, according to can. 
2307. 

3. 0 If the evidence is conclusive, or at least probable 
and sufficient for criminal prosecution, the delinquent 
must be summoned to appear in court and proceeded 
against according to the rules that follow. The sufficiency 
of the evidence must be judged according to can. 1789- 
1791 and can. 1812-1818; confession according to can. 
I750-I753- 

Since the summons can be issued upon certain, or at 
least probable and sufficient evidence, it is plain that by 
confession here is meant a judicial confession, i. e., one 
made in court. The Ordinary, therefore, should ask 


CRIMINAL PROCEDURE 


433 

the person summoned: “You are accused of such and 
such a crime; do you plead guilty ?” 

After the confession or admission is made, the Ordi¬ 
nary may administer judicial correction, which is not 
identical with judicial punishment. 

But there are exceptions to the employment of this 
expedient, and these are stated in can. 1948, which ex¬ 
cludes judicial correction, viz.: 

1. In all crimes, even though confessed, which are 
punishable by excommunication most especially or espe¬ 
cially reserved to the Holy See, or which are punishable 
in law by privation of benefice, infamy, deposition or 
degradation; 

2. In all crimes which require only a declaratory sen¬ 
tence for incurring a vindictive penalty or censure, be¬ 
cause de facto already incurred; 

3. Whenever the Ordinary deems a judicial correction 
insufficient to repair the scandal given and to restore 
justice. This is left to the judgment of the Ordinary. 

Correction may also be employed in criminal damage 
suits, in which the Ordinary may, if the parties consent, 
settle the question of damages according to the rules of 
equity. If, however, the difficulty of an equitable settle¬ 
ment proves too great, the Ordinary may refer the settle¬ 
ment to the civil court and in the meanwhile, by judicial 
correction, repair the scandal and endeavor to correct 
the delinquent (can. 1951). 

The Bishop or his oiffcialis, provided the latter has ob¬ 
tained a special mandate to this effect, shall command 
that the inquisitorial acts be handed to the fiscal promotor 
in the following cases: 

1. If judicial correction was considered insufficient to 
repair the scandal or to restore justice (can. 1948) ; 

2. If the defendent denies the crimes imputed to him, 


434 


ECCLESIASTICAL TRIALS 


in which case the judicial correction could not be em¬ 
ployed ; 

3. If judicial correction proved ineffective, according to 
can. 1953. 

When any one of these three cases is verified, the fiscal 
promotor must immediately draw up a bill of complaint 
or accusation and present it to the judge. 

After the bill of complaint has been presented, the 
next step is properly and legally to summon the accused 
or defendant. 

If the crime is of a very serious nature, and the Or¬ 
dinary is of the opinion that the faithful would be scan¬ 
dalized if the incriminated cleric would exercise the sacred 
ministry or perform spiritual functions or pious exer¬ 
cises, or publicly receive holy Communion, he may, after 
having heard the promotor’s advice, forbid the exercise 
of the sacred ministry or of spiritual ecclesiastical func¬ 
tions, and the public reception of Communion. This is 
a kind of suspension, but without penal character, and 
therefore irregularity would not follow. 

Matrimonial Trials 

All matrimonial cases between baptized persons belong 
by proper and exclusive right to the ecclesiastical judge. 

Cases which concern merely the civil effects of mar¬ 
riage, if these are the principal cause at issue, appertain 
to the civil court; but if the civil effects are only inci¬ 
dental and accessory, they may be taken cognizance of and 
settled by the ecclesiastical judge in virtue of his inherent 
power. 

1. The competent Roman Court is the S. Congrega¬ 
tion of the Sacraments, whenever there is question of 
dispensing from a ratified but unconsummated marriage. 


MATRIMONIAL TRIALS 


435 


This court is so exclusively competent that, as can. 1963 
rules, no inferior judge, hence no local Ordinary, can 
institute a canonical trial in such cases unless the Holy 
See has granted faculties for that purpose. Local Or¬ 
dinaries may receive this faculty from the Holy See 
(S. C. Sacr.) either habitually or for single cases. 

However, the local Ordinaries may indirectly be con¬ 
cerned and empowered to institute a trial, which may lead 
to a sentence of a dispensation from a ratified marriage. 
This happens when a case of impotency, which the Or¬ 
dinary is entitled to take cognizance of in virtue of his 
own authority, is brought before him. If the physicians 
and nurses and other witnesses required in the case are 
unable to prove the existence of impotency but merely the 
fact that the marriage had not been consummated, the 
minutes must be sent to the S. Congregation, which may 
make use of the same to pass judgment concerning the 
matrimonium ratum non consummatum. The S. Congre¬ 
gation may, hire proprio, i. e., without special commission 
from the Pope, transmit the case to the S. Romana Rota, 
which shall investigate the fact of non-consummation. 

2. The second Congregation mentioned in can. 1962 is 
the Holy Office. But here only the Pauline Privilege is 
mentioned, whilst disparity of worship and mixed reli¬ 
gion are omitted. The reason for this omission is that 
only the most exclusive matters are referred to in our 
canon. Besides, as noted in can. 1121, § 2, there is 
no question of a real dispensation in the matter of the 
privilege of faith, but only of a declaration, and such a 
one no Ordinary is allowed to give. Plence if there 
is a doubt whether the interpellation must be made, re¬ 
course should be had to the Holy Office. 

Attention must be called to an Instruction issued May 
7, 1923, by the S. C. of the Sacraments, which minutely 


436 


ECCLESIASTICAL TRIALS 


describes how Ordinaries, indices instructores, must 
proceed in case of a supposed non-consummated marriage. 
The importance of this instruction is apparent from the 
preliminary statement that, if a marriage was really 
consummated, although apparent proofs indicate non¬ 
consummation, the dispensation of the Roman Pontiff 
would be null and void, because not based on fact— 
“atpote suo fundamento destituta, nullius est valoris.” 

The instruction consists of 15 chapters and 34 formu¬ 
lae and will be found in the Acta Apostolicae Sedis, 
Vol. XV, No. 8, Aug. 1, 1923. It fills one entire issue 
of the official bulletin. 

The Ordinary's Competency 

In other matrimonial cases the competent judge is the 
judge of the place (or diocese) where the marriage was 
celebrated, or where the defendant has his domicile or 
quasi-domicile, or, if one of the parties is a non-Catholic, 
where the Catholic party has his or her domicile or quasi¬ 
domicile. 

By the term judge is understood the Ordinary of the 
diocese, because he is the index ordinarins of the place. 
Abbots nullius are not excluded from acting as judges in 
matrimonial matters. The vicar-general as well as the 
vicar-capitular or administrator are also entitled to con¬ 
duct such a trial. But inferior prelates, no matter how 
many titles and insignia they may have, do not fall under 
the category of Ordinaries and, therefore, have no right to 
act in such cases. 

The question who is the Ordinary, is settled by the Code 
when it states the two reasons which decide competency. 
The first is the ratio contractus or the place where the 
marriage was celebrated, because marriage is a species of 



MATRIMONIAL TRIALS 


437 


contract. This reason may be invoked at any time, for 
the fact of having contracted marriage in a certain place 
remains. The second reason is the domicile of the de¬ 
fendant or of the pars conventa, according to the well- 
known axiom: “Actor sequitur forum rei” Equal to the 
domicile in our case is the quasi-domicile, and no pref¬ 
erence may be claimed. 

As to mixed marriages —and this holds good of disparity 
of worship as well as of mixed marriages properly so- 
called—the Code states that the domicile or quasi-domicile 
of the Catholic party decides who is the competent judge. 
Therefore the Ordinary in whose diocese the Catholic 
party has a domicile, is entitled to judge concerning 
the free status of a heretical party who has been divorced 
by a sentence of the civil court. But if the non-Catholic 
party has been received into the Church, the domicile of 
the husband determines the competency of the Ordinary. 

With the sole exception of the matrimonium ratum ct 
non consummatum, which requires only one judge to con¬ 
duct the investigation, a collegiate tribunal of three judges 
must be set up for every matrimonial case or trial, and 
no privilege or custom may be claimed to offset this law. 
Henceforth every diocesan court should have a board of 
three judges for matrimonial trials. 

The Defensor Vincidi 

Each diocese must have a defensor vinculi, who should 
be summoned in cases which concern either the nullity of 
a marriage or the gathering of proofs for non-consum¬ 
mation and dispensation from a ratified but not un- 
summated marriage. 

i. It is the duty of the defensor vinculi to be present at 
the examination of the parties, witnesses, and experts; to 


43^ 


ECCLESIASTICAL TRIALS 


present to the judges in a closed and sealed envelope the 
questions to be opened by the judges in the act of ex¬ 
amination, but to be proposed to the parties and witnesses; 
and to suggest to the judges new questions which may be 
suggested by the cross-examination. 

2. He has to weigh the arguments proposed by the 
parties, and if necessary, to contradict them, and to re¬ 
view the papers offered. 

3. He must set down in writing and point out ob¬ 
servations against the nullity of the marriage and in 
favor of its validity or consummation, and in general 
make use of all lawful means which he deems con¬ 
ducive for the defense of the marriage bond. 

1. He has the right to inspect, at any stage of the pro¬ 
ceedings, the minutes of the trial, even though they have 
not yet been published, and to demand prorogation, which 
is to be granted according to the discretion of the judge, 
in order to complete his records. 

2. He is entitled to be informed of all the proofs and 
allegations made, in order to be able to refute them. 

3. He may demand that new witnesses be introduced, 
or that such as have already been on the witness-stand 
be re-examined, even though the minutes of the trial have 
been completed and published; and he may also make new 
observations. 

4. Finally he may demand that other acts, suggested by 
himself, be drawn up, unless the tribunal by a unanimous 
vote objects to this demand. 

The Plaintiff 

The board of judges cannot take cognizance of, nor 
decide, any matrimonial case, unless a regular accusation 
or a legal petition has preceded. 



MATRIMONIAL TRIALS 


439 


1. Either one or both of the contracting parties may 
present the bill to the episcopal court. The parties alone 
are admitted to attack their marriage on the ground of 
defective consent, whether this defect be caused by vio¬ 
lence and fear, or error, or lack of will, or unfulfilled 
conditions. If one party alone is conscious of defec¬ 
tive consent, that party alone can lawfully present the 
petition. Concerning impotency, too, the only competent 
plaintiffs are the parties themselves, because they alone 
can know the fact and they alone are interested in the 
matter. The Code, however, does not limit the parties’ 
right to these cases. Hence any impediment which, with¬ 
out their own fault, was in the way of their lawful 
union may be used as a reason for impugning it. 

2. Besides the parties themselves, the promotor iustitiae 
or prosecuting attorney of the diocesan court may attack 
a marriage because of impediments which are by nature 
public. 

3. All others, even blood relations, have no right to 
attack a marriage, but may denounce the nullity of a 
marriage to the Ordinary or promoter of justice. 

Proofs 

Blood relations and aihnes, although otherwise ex¬ 
cluded, may be admitted as witnesses in matrimonial cases 
of their kin, because these, as a Palea of the Decree says, 
know their genealogy or pedigree better than strangers. 

In cases of impotency or non-consummation, unless the 
facts are ascertained from other sources, each of the par¬ 
ties must produce witnesses (called “of the seventh hand,” 
septimae manus), who are related to the parties by blood 
or affinity, or neighbors of good repute, or otherwise 
well-informed persons, who will testify under oath to the 


440 


ECCLESIASTICAL TRIALS 


probity of the parties and their truthfulness concerning 
the controverted matter. To these the judge may ex 
officio add other witnesses. This testimony of the septima 
manus is a proof of credibility which adds weight to the 
deposition of the consorts, but it has not the force of full 
proof unless it is supported by other circumstances err 
arguments. 

Cases of impotency and non-consummation require bod¬ 
ily inspection of both or one of the parties, which is to 
be performed by experts, unless circumstances—like 
those just mentioned—render it evidently useless. The 
experts must be chosen by the judges after having taken 
counsel with the defensor vinculi. Besides, the following 
canons must be observed. 

After the report has been received, the experts, the 
midwives, and the matron are to be questioned separately 
according to the points previously drawn up by the de¬ 
fensor vinculi, whom they must answer under oath. 

The verdict of experts is required also in cases of de¬ 
fective consent caused by insanity. They must, if the 
case admits, examine the patient as well as those acts of 
his which cause suspicion, according to the rules of their 
art (psychiatry). Besides, experts who have attended 
the patient before his illness should be heard as witnesses. 

1. The defender is entitled to be heard last, when al¬ 
legations are made, petitions filed, or answers given, and 
he may exercise this right either in writing or by word of 
mouth. 

2. Hence the tribunal shall not proceed to render a 
verdict, unless the defender has formally declared, upon 
request, that he has nothing more to bring forward or to 
inquire into. 

3. If, however, the defender has brought forward 



MATRIMONIAL TRIALS 


441 


nothing to the contrary before the day set for the trial, it 
is presumed that he has nothing more to say. 

If the case concerns a dispensation from a matrimo- 
nium ratum non consummatum, the judge who drafted 
the case may neither publish the acts nor pronounce sen¬ 
tence as to non-consummation or the reasons for the 
dispensation, but must send all the acts together with the 
written view of the bishop and of the defender to the 
Holy See. 


I Appeals 

The defensor vinculi must, within the time granted by 
law, appeal to a higher tribunal if the first sentence was 
in favor of the nullity of the marriage. If for any rea¬ 
son he neglects to do his duty, he may be compelled to do 
it by the judge. 

If the second sentence confirms the first given in favor 
of nullity, and the defender of the court of appeals (which 
is a different one from that of the first instance) does not 
feel himself obliged in conscience to appeal, the parties 
are free to marry again after the expiration of ten days 
from the date when the second sentence became known to 
them. Pending the appeal, i.e., during the time between 
the first and second sentence, the party in whose favor the 
nullity was declared in the first instance, is not allowed 
to remarry; and if he or she should have attempted a mar¬ 
riage before the second sentence, they must be separated, 
or else are to be treated as guilty of polygamy. 

After the second sentence in favor of nullity, the Or¬ 
dinary should see to it that the annulment of the mar¬ 
riage is duly recorded in the baptismal and matrimonial 
registers at the place where the marriage was contracted. 


442 


ECCLESIASTICAL TRIALS 


Since no sentence in matrimonial trials ever becomes a 
res iudicata, a case may be reopened at any time if new 
proofs are offered; but these proofs must be weighty and 
supported by documents. 

Cases Excepted from the Preceding Rules 

1. The impediments which may be brought forward in 
order to have a marriage declared null and void are: dis¬ 
parity of worship, sacred orders, solemn religious pro¬ 
fession, the bond of a previous marriage, consanguinity, 
affinity, and spiritual relationship,—seven in all. That 
the others are not included is due partly to the nature of 
these impediments, partly to the difficulty of complying 
with the required conditions. 

2. The conditions which govern the application of 
this canon are: (a) that the existence of the impediment 
be ascertained by a reliable and authentic document, 
which cannot be rejected or disregarded; (b) that it be 
equally certain that no dispensation had been granted from 
the impediment. 

3. The Code adds that in these cases the solemnities 
thus far mentioned (in the preceding canons, which pre¬ 
scribe the regular trial) may be omitted, and the Ordi¬ 
nary, upon having summoned the parties, may declare the 
marriage null and void, provided the defensor vinculi is 
satisfied. 

If the defender prudently believes that the impediments 
mentioned in the preceding canon did not exist, or were 
probably dispensed from, he is obliged to appeal the case to 
the judge of the second instance, to whom all the acts must 
be transmitted with the understanding that the case belongs 
to the excepted class. 


ORDINATION CASES 


443 

The Papal Commission for the Authentic Interpreta¬ 
tion of the Code has decided the following cases: 

1. If two Catholic parties have contracted marriage 
before the civil magistrate only, without observing the 
“Tamctsi” or the “Ne temere,” in places where these 
laws are binding, and wish to contract marriage anew 
in facie Ecclcsiae, or to have their civilly contracted mar¬ 
riage revalidated, the local Ordinary (or the pastor after 
having consulted the local Ordinary) may declare the 
first marriage null and void without a formal trial and 
without the intervention of the defensor vinculi, after 
having made the investigation prescribed in can. 1019, 
i. c., after having ascertained the free status of the couple, 
via.: that no other impediment except the former invalid 
civil marriage is in the way. 

2. The same rule is to be applied in cases of mixed 
marriage contracted invalidly under the same condition, 
provided the Catholic party wishes to contract a new 
marriage with a Catholic party. 

3. The same rule applies in cases where apostates from 
the Catholic faith have contracted an invalid civil mar¬ 
riage for the same reason, and, now repentant, wish to 
contract a new marriage with a Catholic party in facie 
Ecclcsiae. 

But in each and every one of these cases a civil divorce 
must have been obtained. (A. Ap. S., Vol. XI, 479, Oct. 
16, 1919). 

PROCEDURE IN ORDINATION CASES 

If the obligations arising from sacred ordination 
or the validity of the ordination itself, are in dispute, a 
petition must be filed with the S. C. of Sacraments. If 
the validity is disputed because of a substantial defect in 


444 


ECCLESIASTICAL TRIALS 


the holy rites, the S. C. of the Holy Office is competent 
to decide whether the case is to be tried in a judiciary or 
disciplinary manner. 

If the judiciary form is chosen, the S. Congregation 
shall refer the case to the court of the diocese to which the 
clergyman belonged at the time of his ordination, or, if the 
case turns upon a substantial defect of the holy rites of 
ordination, to the court of the diocese in which he was 
ordained. As to the various instances of appeal, canons 
1594-1601 must be observed. 

If the case is to be settled in the disciplinary way f the 
S. Congregation itself shall render the decision, after 
having received the necessary documents from the com¬ 
petent diocesan court. 

Diocesan courts are requested to note that the Apostolic 
See always expects either a verdict or at least documents 
relating to the case. A verdict or sentence is required 
if the Roman tribunal is to take up the case. But no 
verdict is to be given before the S. Congregation has noti¬ 
fied the diocesan court that the case should be settled 
ordine iudiciario. This must be expressly stated in the 
document sent from Rome. 

The clergyman himself, as well as the Ordinary to 
whom he is subject, or in whose diocese he was ordained, 
may attack the validity of an ordination. 

No one but the clergyman who thinks that he has not 
contracted the obligations arising from sacred ordination, 
is entitled to ask for exemption from these obligations. 

A clergyman who brings suit for the purpose of being 
freed from the obligations arising from sacred ordination, 
even though he does not attack its validity, is provisionally 
suspended from the exercise of orders. This suspension 
(or rather prohibition) is not penal, and consequently a 




THE BEATIFICATION PROCESS 


445 


cleric affected by it would not become irregular if he were 
illicitly to exercise the functions proper to his order. 

Two identic sentences are required to free a clergyman 
from the obligations attached to sacred orders. Concern¬ 
ing appeals , canons 1986-1989 must be observed. 


SECTION II 

THE BEATIFICATION PROCESS 

This whole process, as far as the final issue is concerned, 
is exclusively reserved to the Apostolic See. However, a 
preliminary procedure may be instituted by the local 
Ordinary, but not by the vicar-general without a special 
mandate. 


1. Introduction of the Cause 

The petition for introducing a cause of beatification 
must be directed to the Apostolic See. But before it is 
admitted, the truth must be juridically established con¬ 
cerning the purity of doctrine of the deceased Servant of 
God, the fame of his sanctity, the virtues and miracles he 
wrought, the fact of his martyrdom, and the absence of 
any peremptory obstacle; finally, concerning the fact that 
no public worship has been paid to him. Hence the 
postnlator must petition the Ordinary: 

1. To see to it that the writings of the Servant of God 
be requisitioned, i.e., seized and examined; 

2. To arrange a formal inquiry ( processus informati- 
vus) into his fame of sanctity, his virtues in general, or his 
martyrdom, the cause of his martyrdom, and his miracles; 

3. To institute an inquiry as to the non-cult us. 


446 THE BEATIFICATION PROCESS 


The competent Ordinary in this matter is he in whose 
diocese the Servant of God died, or in whose diocese the 
miracles have happened. If the Ordinary himself is re¬ 
lated to the Servant of God, he shall delegate another to 
conduct the trial. 

If an inquiry was instituted within the past thirty years 
into the fame of sanctity or martyrdom of the Servant of 
God, but was interrupted before the case was introduced at 
Rome, the Ordinary or his successor must inquire into the 
continuation of the fame. 

The judge is the Ordinary or a priest delegated by him. 
If a delegate conducts the trial, two other judges, taken 
from the college of synodal judges, must be chosen by the 
Ordinary. 

All this must be done by a formal decree. 

The sessions for taking the oath and examining the wit¬ 
nesses should be held in the daytime and, if possible, in a 
sacred place. 

The acts must be closed and sealed after every session 
and opened only at the next session; if at any time the seal 
was broken, the judge must report the matter to the S. 
Congregation. 


2. Inquiry into the Writings of the Servant of God 

1. The term “writings” comprises all published and un¬ 
published works, sermons, letters, diaries, autobiographies, 
and manuscripts of every kind left by the Servant of 
God. 

2. The faithful must be publicly exhorted to deliver up 
all his writings which they may have in their possession. 
If a religious is concerned, this publication must be made 
in every religious house, and the superiors are obliged to 
take care that it is properly done. 


PROCESSUS INFORMATIVUS 


447 


The promotor fidei shall see to it that the publication is 
also made in other places where writings may be found. 

3. The Ordinary, urged by the promotor fidei, shall 
officially search for all such writings. If writings of the 
Servant of God are likely to be found in another diocese, 
he shall ask the Ordinary of that diocese to search for 
them according to law (especially can. 2043), an d forward 
anything he may find. 

4. Those who wish to retain autographs of the Servant 
of God must allow the notary to take an authentic copy 
thereof, to be sent to the S. Congregation. Writings 
found in libraries or archives, whence they cannot be with¬ 
drawn, should be faithfully copied or photographed, and 
authenticated by the notary; if no copy can be obtained, 
the matter must be referred to the S. Congregation. 

5. The notary must carefully describe the number and 
quality of the writings, and the acts must be signed by the 
Ordinary or his delegate, and the promotor fidei, and 
sealed with the Ordinary’s seal. 

6. The postulator must promise under oath that he will 
make a careful requisition. If the Servant of God was a 
religious of a female institute, the Mother General must 
make the same promise, under oath, and testify that 
all the writings of the Servant of God have been delivered 
up by her and her subjects. 

7. In case of a martyr, the requisition may be made 
after the commission has been appointed by the Sacred 
Congregation. 


3. The Information Process 

1. The processus informativus must be instituted by 
the Ordinary . If it was not begun until thirty years after 
the death of the Servant of God, no further procedure is 


448 THE BEATIFICATION PROCESS 


allowed until proof is furnished that the delay was not due 
to fraud, deceit, or culpable negligence. 

2. The witnesses to be examined (can. 2019 f.) con¬ 
cerning the fame of sanctity, martyrdom, or miracles, are 
not required to testify specifically, but general testimony 
as to the growth and existence of the rumor among honest 
and serious persons is sufficient. 

The witnesses are to be queried by the judge as to their 
knowledge of the life, virtues, miracles, and martyrdom of 
the deceased, how they obtained their knowledge, and 
whether it is of the nature of public rumor. Then they 
must answer the questions put by the promoter of faith. 

3. The acts of the inquiry may not be closed before all 
the letters and papers of the faithful and the friends and 
acquaintances of the deceased (see can. 2023-2025) have 
been inspected by the promotor fidei. After all the evi¬ 
dence has been gathered, the tribunal shall, upon having 
heard the promotor fidei, give notice to the postulator to 
bring forward whatever he has, within a fixed term. 

4. The judge, then, if the promotor fidei is satisfied, 
shall command the notary to publish the acts of the in¬ 
quiry, which shall be copied by a clerk designated by the 
tribunal. The copy shall be in handwriting (typewriting 
forbidden). It is to be collated with the original in the 
presence of one of the judges and of the promotor fidei, 
and then signed by the notary, the judge, and the promotor, 
and sealed. 

After the collation, the original acts shall be closed and 
sealed, and placed in the diocesan archives, never to be 
opened without the permission of the Apostolic See. The 
abstract is closed and sealed with the seal of the Ordinary. 
The notary shall make two copies of it, one of which is to 
be forwarded to Rome, the other to be kept in the diocesan 
archives. 




TRANSMISSION OF ACTS 


449 


4. Inquiry into the Non-Cultus 

Besides the two witnesses produced by the postulator, 
the tribunal shall introduce two more, who shall testify 
whether or not the Servant of God ever received a public 
worship. Besides, the tribunal shall carefully inspect his 
grave, the place (or house) where he lived and died, and 
other localities where indications of a cult may be 
suspected. 

If the inquiry brings to light indications which show 
that public worship was paid, the promotor hdei must in¬ 
sist upon further investigation and the tribunal must give 
sentence as to the existence of such worship. 


5. Transmission of the Acts to Rome 

1. As soon as the Ordinary has obtained the writings, 
he must forward them to Rome, together with a judicial 
report as to the care with which the requisition was con¬ 
ducted. If other writings are found while the trial is go¬ 
ing on in Rome, they must be immediately forwarded 
thither and examined there before any further progress 
can be made. 

2. An abstract of the informative process must be de- ^ 
livered by the Ordinary to the postulator, who shall send 

it to the S. Congregation. At the same time he (the pos¬ 
tulator) shall forward letters from the judges addressed to 
the S. Congregation, and letters of the ( diocesan ) pro¬ 
motor fidei to the promotor general of faith, in order that 
the S. Congregation may be informed of the trustworthi¬ 
ness of the witnesses and the legality of the acts. For 
this purpose the Ordinary shall also send a description or 


450 


THE BEATIFICATION PROCESS 


copy of the seal with which the abstract was sealed. 

3. Finally the Ordinary shall have the postulator to 
send the complete result of the inquiry as to the fact of 
non-cultns to the S. Congregation. 

6. Per Viam Cultus 

The Ordinary competent to conduct the inquiry is he in 
whose diocese the cult existed or the documents were 
found, or who has the right of pre-occupation if several 
Ordinaries are concerned. Therefore the Ordinary who 
first summons witnesses is entitled to complete the pre¬ 
liminary trial. 

2. The postulator then demands of the Ordinary: (a) 
to requisition the writings of the Servant of God, and (b) 
to institute an inquiry concerning the fame of sanctity and 
virtues, or martyrdom and miracles. This is required in 
order to answer the following questions: Whether there 
was in the place a constant and general fame and persua¬ 
sion of the saintly life of the Servant of God, or of his 
martyrdom, and the reason thereof, also of the miracles 
wrought by his intercession; and whether this veneration 
still exists at present and in what manner it manifests 
itself. 

3. Then the acts and results of the inquiry are sent to 
the S. Congregation, where the dubium is proposed : “An 
signanda sit commissio introductions causae.” 

4. After this the litterae remissoriales are dispatched to 
the diocesan judges, in order to arrange for the (dele¬ 
gated) apostolic process on the casus exceptus, the result 
of which is again forwarded to Rome, where the final sen¬ 
tence is given, investigation into the virtues or martyrdom 
ordered, and finally, the so-called decree of equivalent 
beatification (ae quip oil ens beatificatio) is issued. 


THE BEATIFICATION PROCESS 


45i 


SECTION III 

MODE OF PROCEDURE IN VARIOUS CASES 

i. General Rales 

1. In all these trials a notary should be employed. He 
should put the acts in writing and see to it that they are 
signed by all concerned and preserved in the archives. 

2. Admonitions, if necessary, may be made orally or in 
writing. If they are administered orally, this must be 
done by the Ordinary in the presence of the chancellor or 
some other official of the diocesan court, or of two wit¬ 
nesses. If by letter, the latter, should be registered and 
receipted for by the post office. 

Whoever prevents the admonition from reaching him is 
regarded as having been admonished. 

3. Examiners, consultors, and the notary must at the 
very beginning of the trial promise under oath to keep the 
secret. 

4. No appeal, but only a recourse to the Holy See (S. 
C. Concili) is open from a definite sentence in any of these 
trials. If recourse is had, all the documents must be for¬ 
warded to Rome. This recourse must be treated like an 
appeal, of which can. 1881 says that it should be made 
within ten days by notifying the judge who has given the 
sentence. Pending the recourse, the Ordinary cannot val¬ 
idly confer the parish or benefice of which the clergyman 
has been deprived on another, except temporarily. There¬ 
fore no permanent appointment can validly be made 
pending a recourse. This follows from the nature of the 
case. 


452 


MODES OF PROCEDURE 


2. Removal of Irremovable Pastors 

An irremovable pastor may be removed from his parish 
for any reason which renders his ministry harmful, or at 
least inefficient, although there may be no grievous fault 
implied on his part. These reasons are: 

1. Inexperience or permanent mental or bodily infirm¬ 
ity, which render the pastor incapable of discharging his 
obligations properly, provided the Ordinary is convinced 
that the welfare of the souls in his charge cannot be safe¬ 
guarded by the appointment of a coadjutor, according to 
can. 475. 

2. The second reason is hatred of the people, even 
though unjust and not general, if it is so violent as to 
prove an obstacle to the pastor’s useful ministry and not 
likely to cease within a short time. 

3. The third reason is loss of esteem among righteous 
and serious-minded men. Esteem is paid to the office and 
authority of the pastor, and the loss of it necessarily ren¬ 
ders the exercise of the sacred ministry ineffective, if not 
detrimental. The persons whose esteem the pastor has 
lost must be men of character, not garrulous women, even 
though of the “upper” class. 

4. The fourth reason is a probable crime imputed to the 
pastor, which, though secret, in the bishop's judgment may 
cause great scandal among the faithful. 

5. The fifth reason is bad administration of the tem¬ 
poralities, resulting in great damage to the church or 
benefice. This is culpable if it involves a misappropriation 
or embezzlement of public funds, i.e., funds belonging to 
the church or diocese, diocesan collections, etc., or risky 
speculations, which are a sort of illegal gambling. It may 
not involve moral fault, but simply result from financial in- 


REMOVING IRREMOVABLE PASTORS 453 

capacity or inability to keep books and collect the rev¬ 
enues of the church or benefice. 

Invitation to Resign 

After setting forth the reasons which may advise a re¬ 
moval, the Ordinary shall invite the delinquent pastor to 
resign. This invitation may produce no effect, because 
the pastor does not answer, or it may produce the desired 
effect, i. e., cause him to resign. If the pastor refuses to 
resign and offers reasons for his refusal, the way is open 
to legal procedure proper, as seen in can. 2151 ff. 

1. Whenever the Ordinary is convinced that a pastor 
is guilty of mismanagement, for one of the reasons stated 
in the preceding canon, then he himself, or his vicar- 
general must proceed as follows: 

a) He must call in two examiners, either synodal or 
pro-synodal, and hear their advice, though he is not bound 
by their consent (can. 105, n. i.°). 

b) With these two examiners he should discuss the 
truth and seriousness of the charges made against the 
pastor, because discussion may remove doubts and clear up 
the case. 

c) After the discussion he shall invite the pastor to 
resign. This invitation may be made orally or in writing, 
but should always be accompanied by the indication of the 
term within which the resignation is expected. Although 
our text does not prescribe that the oral invitation be made 
in the presence of the chancellor, or of some other diocesan 
official, or of two witnesses, yet, since it amounts to an ad¬ 
monition, it seems to us that can. 2143, §1,2 must be ap¬ 
plied. A written invitation to resign should be sent by 
registered mail. 

d) This invitation may be omitted only in case the 


454 


MODES OF PROCEDURE 


pastor suffers from a mental defect, which in the “Maxima 
cura” (can. 9) is simply styled “insanity.” But the term 
vitium mentis is somewhat broader than insanity. It may 
include habitual melancholia (this is now regarded by 
scientists as a form of insanity). 

e) In order to render not only the invitation itself, but 
all the following acts, juridically valid, the Ordinary is 
bound to state in the invitation the reason that prompted 
him to issue the invitation and the evidence which supports 
it. 

2. If the pastor ignores the bishop's invitation to re¬ 
sign within the appointed time, i. e., if he does not resign 
nor ask for delay or dilatory terms, nor rebut the reasons 
alleged, the Ordinary must make two inquiries, one touch¬ 
ing the juridical formalities, and the other concerning the 
fact whether, and be morally certain that, (a) the invi¬ 
tation to resign has been properly made and reached the 
pastor and that (b) the pastor had no lawful excuse for 
not answering the same. 

If the pastor resigns his parish, the Ordinary shall de¬ 
clare the same vacant by resignation. This fact must be 
expressly mentioned because of the formalities required 
for the bestowal of the vacant parish on another, accord¬ 
ing to can. 184-187, and also on account of can. 1485. 
Formerly no office or benefice made vacant by resignation 
could be bestowed on relations of the resignans; but the 
Code is silent on this condition. 

The resignation may be made absolutely or condition¬ 
ally, provided the Ordinary is entitled to accept, and does 
accept, the conditions. A resignation is absolute if no 
simoniacal or other condition enters into the transaction: 
conditional, if a clause is attached in the act of resignation. 

The pastor may oppose the reason alleged in the invi¬ 
tation if he is convinced that it has no foundation except 


REMOVING IRREMOVABLE PASTORS 455 


gossip. In that case he is entitled to demand dilatory 
terms —the extent of which is not determined in the 
Code—in order to prepare his defence. Whether and how 
much delay may be granted depends on the Ordinary’s 
judgment, which, however, should be guided not only by 
charity towards the pastor, but also and chiefly by consid¬ 
eration for the bonum commune. 

Proceeding of the Ordinary 

1. The pastor shall duly prepare his defence, for which 
purpose he may produce two or three witnesses, according 
to can. 2145, and also papers referring to the case. Here, 
of course, much depends on the reason that prompted the 
invitation. 

2. After the defence has been produced, or if it is made 
orally during the hearing, the Ordinary is bound to call 
the two examiners, in order to hear their advice. 

The decision is left entirely to the Ordinary, who is not 
bound by the consent, much less, of course, by the advice, 
of the examiners. 

The result of the bishop’s decision may be either posi¬ 
tive or negative, i. e., he may either accept the defence of 
the pastor as sufficient to clear him, or he may reject it as 
insufficient. In either case the decision must be communi¬ 
cated to the pastor in the form of a decree. 

3. The next stage in the procedure is a possible re¬ 
course on the part of the pastor. Recursus is not equiva¬ 
lent to appeal, and consequently does not suspend the effect 
of the decree. The modus procedendi is as follows: 

a) The recourse against removal must be lodged within 
ten days from the date of receiving notice of the decree. 

b) The recourse is to be presented to the same Ordi¬ 
nary who issued the decree of removal. If he should 


45 ^ 


MODES OF PROCEDURE 


have gone out of office in the meantime, either by death, 
resignation or transfer, the recourse may be sent to the 
vicar-capitular (administrator). However, we believe 
that in this case the equitable time should be suspended 
until the new Ordinary’s arrival, unless the scandal is too 
great. 

c) Then the Ordinary grants the pastor another ten 
days, within which he may produce his new defence. 
Thus the pastor has twenty days in all from the date when 
he receives the notice of his removal, in order to prepare 
his second defence. 

d) The Ordinary must call in two pastors who are con- 
suitors in order to proceed validly in the examination of 
the new allegations.. These new allegations may be ac¬ 
companied by new witnesses, whom the pastor could not 
produce at the first trial. But the pastor must prove that 
the new witnesses could not be brought to the witness- 
stand before. To prove that, it would be sufficient for 
the witnesses to affirm it, because they are under oath, 
according to can. 2145. 

With these two consultors the Ordinary shall discuss 
the case, as he did before with the examiners. However, 
in order fully to enlighten the consultors, the allegations 
and depositions made in the first pleading in presence of 
the examiners must again be scrutinized. The consultors 
have no decisive vote. 

e) Then comes the decision, in the form of a decree, 
wherein the presence of the consultors together with the 
reasons in general (as above) is mentioned. 

f) This decree must be communicated to the pastor. 

4. Supposing now that the decree insisted on removal 
and was duly notified to the pastor, it appears but logical 
that the parish should be declared vacant, at least de iure; 


REMOVING REMOVABLE PASTORS 457 

although no declaration to that effect is required by the 
Code. 

Then the Ordinary must proceed as follows: 

a) If the invitation was accepted or obeyed after the 
first plea for defense, without recourse, the examiners 
must be called to a meeting, the purpose of which is to 
provide for the removed pastor. 

b) If recourse was had, and a second defense is there¬ 
fore required, the consultors must be called in for the 
same purpose. 

c) The debate concerns the mode of providing for the 
removed pastor, either by transfer to another parish, or 
by appointment to another office or benefice, provided he 
is fit for any of these places, or by a pension. The 
correct mode must be determined by the nature of the 
case and the circumstances. 

d) All other things being equal, one who has resigned 
is to be favored rather than one who was removed. 

The Code leaves it to the prudent judgment of the 
Ordinary how to provide for the removed pastor. 

The removed pastor must, as soon as possible, leave the 
parochial residence and hand all the belongings of the 
parish to the new pastor or administrator pro tempore, 
appointed by the Ordinary. “Omnia quae ad paroeciam 
pertinent” signifies all the parish books, all the account 
books, and all the utensils or sacra suppellex belonging to 
the parish. 


3. Removal of Removable Pastors 

1. The removal of a removable, no less than that of an 
irremovable, pastor requires a just and grave cause, i.e., 
one of those stated in can. 2147. 


458 


MODES OF PROCEDURE 


If the pastor is a religious, the procedure is very simple. 
See can. 454, § 5, where it is said that pastors belonging 
to a religious community may be removed ad libitum either 
by the local Ordinary or by the religious superior. The 
one has only to notify the other of the removal, without 
stating the reasons. Recourse to the Holy See is ad- 
missable, but with devolutive effect only. 

2. If the local Ordinary is convinced that one of the 
reasons stated under can. 2147 can be advanced against 
a removable pastor, he shall paternally warn and exhort 
the latter to resign the parish, and state the reason why 
his pastoral ministry has become detrimental or at least 
useless. No special formality is required for this ad¬ 
monition, which is expressly styled paternal, i. e., non-can- 
onical. But a certain and fixed term must be given the 
pastor for answering the Ordinary’s demand. 

If the warning is given in writing, it should be sent 
by registered mail, because can. 2149 also applies in this 
case. 

3. If the pastor does not act after being thus warned, 
he may be removed at once without the benefit granted by 
can. 2154. If he answers negatively, i. e., if he refuses 
to resign, he must state the reasons for his refusal in 
writing. The Ordinary shall then discuss these reasons 
with two examiners. This discussion is required for 
valid procedure. 

4. If the Ordinary, after having heard the advice of the 
examiners—which he is not bound to follow—deems 
the reasons brought against the removal futile or unlaw¬ 
ful, he shall repeat the exhortation to resign under 
threat of involuntary removal in case the pastor refuses 
to leave the parish within the time appointed. 

5. After the expiration of this term (which may, how¬ 
ever, according to the prudent judgment of the Ordinary, 



TRANSFER OF PASTORS 


459 


be prolonged) the Ordinary shall issue the decree of re¬ 
moval. This, of course, must be intimated to the pastor. 
This is the last phase and requires no recourse and no 
calling in of the consultors. But provision is to be made 
just as for irremovable pastors, and therefore canons 
2154-2156 apply to this case. 

4. Transfer of Pastors 

1. The Code states that if the welfare of souls requires 
that a pastor be transferred from a parish which he has 
governed successfully to another parish, the Ordinary 
shall propose the matter to the pastor and persuade him 
to accept the transfer for the love of God and of souls. 
The reason for the transfer is here supposed to exist in 
the parish to which (ad quam) the pastor is to be 
transferred. It may be that this parish is financially or 
spiritually neglected, or that factions or parties are tear¬ 
ing it up to the detriment of souls. 

2. The Ordinary, however, must duly consider the char¬ 
acter of the pastor, whether he is removable or irremov¬ 
able, and whether he is willing or not to accept the trans¬ 
fer. For the Ordinary (iure ordinario) has no right to 
transfer an irremovable pastor against his will to another 
parish without special faculties from the Apostolic See. 

3. A removable pastor may be transferred to another 
parish even against his will , provided the parish to which 
he is to be transferred is not of too low a rank, and pro¬ 
vided the Ordinary proceeds according to the canons. 

What u inferioris ordinis” means has been touched upon 
above. The inferiority may be owing to a smaller income 
or to less importance or smaller size. The pastor, as 
stated before, may have his own ideas about the superior¬ 
ity or inferiority of a parish. If he accepts the parish of- 


460 


MODES OF PROCEDURE 


fered to him, no further formality is required, except that 
he declare his willingness to accept, in order that the 
Ordinary may declare the parish vacant,—but not by 
resignation. For it is a transfer, not a resignation. 

4. If the removable pastor thinks he has reasons for 
not following the advice of the Ordinary, then 

a) He must state in writing the reasons for his un¬ 
willingness to accept the transfer, e. g., his health, his men¬ 
tal qualities, his financial condition, etc. 

b) The Ordinary shall then ponder the reasons given 
and consider the status of the parish. If, after due de¬ 
liberation, he insists upon the transfer, he is bound, for 
valid procedure, to hear the opinion of two pastors-con- 
sultors on the reasons advanced, on the condition of both 
parishes {vis., the one from which and the one to which 
the removable pastor is to be transferred), and, finally, 
on the reasons of necessity or utility which apparently 
demand a transfer. 

c) If the Ordinary, after having heard the consultors, 
still insists on the transfer, he may renew his paternal 
(not canonical) admonition. 

d) If this proves fruitless, and the Ordinary remains 
unmoved in his former decision, he shall command the 
removable pastor {parocho praecipiat ) to repair to the 
new parish within a certain time. This is a formal pre¬ 
cept, to be served in writing, wherein the Ordinary de¬ 
clares that, after the expiration of the time granted the 
pastor for going to his new parish, the parish which he 
holds at present will be ipso facto vacant. But a reason¬ 
able time should be given. Twenty-four hours is not 
considered reasonable. Ten days is more acceptable. 

e) After the expiration of the appointed time, if the 
removable pastor has not gone to the parish assigned, his 
old parish must he declared vacant. 



AGAINST NON-RESIDENT CLERICS 461 


5. Procedure Against Non-Resident Clerics 

a) The Ordinary shall first issue a canonical warning 
or admonition and in the meantime, in the case of a negli¬ 
gent pastor, provide as well as he can for the welfare of 
his subjects. The expenses of this temporary provision 
must be borne by the careless pastor. 

b) The admonition may or may not produce the de¬ 
sired effect. Three hypotheses are conceivable: Either 
the cleric does not heed the warning at all, or he takes up 
his residence without further ado, or he gives reasons for 
his absence. 

(1) If the cleric neither takes up his residence nor 
gives reasons for his absence within the term appointed in 
the admonition, the Ordinary shall declare the parish or 
benefice vacant. However, to do this validly, he must 
first make certain that the canonical warning was duly 
served and that there was no reason for not answering. 

(2) If the cleric returns to his residence, the Ordinary 
must ,—if the absence was entirely unlawful (of which the 
Ordinary is the judge),—deprive him of a pro rata share 
of his income, and may also inflict other punishments pro¬ 
portionate to the guilt incurred. The pro rata share of 
the income is to be reckoned by the time of the unlawful 
absence. 

(3) If the cleric does not return to his residence, but 
submits reasons for his absence, the Ordinary must call in 
two examiners, hear their advice, and investigate whether 
the reasons are acceptable and lawful. Lawful would be 
sickness, or necessary business transactions connected with 
the parish or benefice, or other reasons which Christian 
charity or necessity dictate. Should the Ordinary, after 
having heard the examiners, think the proffered reasons 


462 


MODES OF PROCEDURE 


unacceptable or unlawful, he must assign another term for 
the cleric's return to his residence. The fine for unlawful 
absence runs in the meanwhile. 

At this stage, i. e., after the second warning, with a new 
term appointed for the absentee clergyman, another dis¬ 
tinction is introduced and must be duly considered, vis., 
the difference between a removable and an irremovable 
pastor. 

(a) A removable pastor who does not return after the 
second canonical warning, may (not must) be deprived of 
his parish immediately after the appointed time has 
elapsed. If he returns within the time set, the Ordinary 
shall issue a precept to the effect that if he again leaves the 
parish without a written permission, he shall be ipso facto 
deprived of the parish. It is not only advisable, but 
necessary, that a copy or abstract of this precept be kept in 
the archives of the diocese for further use. We may also 
add that a written permission is needed for protracted ab¬ 
sence. But it does not mean that a removable pastor can 
not leave his parish for one or two days a week, provided 
this does not occur too frequently. 

(b) If a cleric who holds an irremovable benefice (our 
irremovable pastors are here included) does not return to 
his residence after being duly warned, but brings forward 
new excuses for his absence, the Ordinary shall discuss 
with the examiners, whether they may be admitted as 
lawful. If not, he shall not demand other proofs, but 
simply command the cleric to return within the time al¬ 
ready appointed or a new term now fixed, under penalty 
of privation of benefice, to be incurred ipso facto. 

If the cleric does not return within the prescribed time, 
the Ordinary shall declare him deprived of his benefice; 
if he returns, the Ordinary shall give him a precept like 
that issued in the case of removable pastors, vis., not to 


CONTRA CONCUBINARIOS 


463 


leave the place a second time without a written permission, 
under penalty of ipso facto incurring privation of benefice. 

However, in neither case (whether the cleric be remov¬ 
able or irremovable), should the Ordinary declare the ben¬ 
efice vacant unless »he has first discussed the reasons al¬ 
leged with the two examiners and ascertained for himself 
that the cleric was unable to obtain a written permission 
or leave of absence. For it may be that the pastor or ben¬ 
eficiary was retained unlawfully in a place and had no 
means of communicating with the bishop, or that commu¬ 
nications were interrupted for a long time. Besides, it 
sometimes happens that the secretary or chancellor makes a 
mistake in opening or reading the mail. The same may 
happen to the bishop. Hence it is advisable for a clergy¬ 
man to ask for leave of absence by registered letter. 

6. Contra Concubinarios 

I. The Code requires a canonical warning, which is to 
be administered according to can. 2143 and is called per¬ 
sonal and special, i. e ., directed to the clergyman himself, 
with special mention of the imputation. Besides, the ad¬ 
monition must also contain the threat of the penalties 
ferendae sententiae which are mentioned in can. 2359. 

The Code goes on to lay down the rules of procedure 
after the canonical warning has been issued. Here, 
again, three hypotheses are possible. 

Provided the warning or precept was duly made and no 
answer returned, the Ordinary shall proceed as follows: 

(a) He shall suspend the cleric a divinis, i. e., from ex¬ 
ercising the acts of the power of ordination (can. 2279, 
§ 2, n. 2 0 ); 

(b) If he is a pastor, he shall be immediately deprived 
of his parish; 


464 


MODES OF PROCEDURE 


(c) Against a beneficiary without the care of souls, 
the Ordinary shall deprive him of one-half of his income 
if he does not amend within six months from the date of 
the suspension; after three more months of all the income, 
and after three more months of the benefice itself, again 
provided that no emendation has followed. 

2. It is possible that the cleric does not obey the in¬ 
junction of the Ordinary, but proffers excuses. In that 
case the Ordinary must call in two examiners and discuss 
with them the validity or lawfulness of the reasons alleged. 
This discussion is absolutely required, although the Ordi¬ 
nary is not bound to accept the views of the examiners. 
But, as stated above, the reasons must be impartially dis¬ 
cussed, as also the testimonies on the strength of which the 
cleric was charged with this offense. 

3. The third hypothesis is that the Ordinary, after dis¬ 
cussing the proffered reasons with the examiners, finds 
them unfounded or unlawful, either because they are in¬ 
sufficient or because the evidence is too weak. The result 
of this negative finding must as soon as possible be com¬ 
municated to the suspected cleric, together with a formal 
precept to obey the injunction given in the former warn¬ 
ing within a term appointed by the Ordinary. The length 
of time is not precisely determined except by the adjective 
(breve) which may be interpreted as meaning ten days, 
more or less, according to circumstances or persons and the 
danger of scandal. 

If these new reasons are rejected by the Ordinary, 
he must issue another precept (which might be called 
the third canonical warning) bidding the accused cleric to 
abide by the injunction of the Ordinary, or rather to carry 
it into effect within the time appointed for that purpose. 
If the irremovable clergyman does not dismiss the obnox¬ 
ious woman, or give up her company, the Ordinary shall 


AGAINST NEGLECTFUL PASTORS 465 

proceed as stated in can. 2177, i. e., he shall inflict suspen¬ 
sion and deprive the culprit of his parish, of his income, 
and of his benefice. 

Note that can. 2180 permits the Ordinary to proceed, 
after the third warning, against a removable clergyman in 
the same way as against an irremovable one. While re¬ 
course is admitted, it has no suspensive, but only a devolu¬ 
tive effect. 


7. Against Neglectful Pastors 

The neglect here mentioned concerns: 

1. The administration of the Sacraments, pastoral cor¬ 
rection and charity, care of the sick and dying (can. 467, 
§ 1:468, § 1); 

2. Catechetical instruction and personal preaching, es¬ 
pecially on Sundays and holy days of obligation (can. 

1330-1334; 1344); 

3. Neatness and decorum in the house of the Lord, 
which includes care that no profanation occurs (can. 
1178). 

If a pastor, who is personally responsible for all the 
things mentioned, grossly neglects or violates the regula¬ 
tions laid down by the law, the bishop shall warn him, re¬ 
mind him of the strict and grievous obligation imposed 
on his conscience, and of the penalties with which the 
law visits such offenses. 

If the pastor, after a warning has been duly admin¬ 
istered, does not mend his ways, the bishop shall rebuke 
him and mete out a punishment commensurate with the 
gravity of his neglect. 

However, rebuke and punishment may be inflicted only 
after the bishop has heard the advice of two examiners and 
after the pastor has been given a chance to defend himself. 


466 


MODES OF PROCEDURE 


This defense may be made personally or by proxy, orally 
or in writing. If the pastor does not succeed in purging 
himself of the charge, rebuke and punishment may follow, 
and are deserved. The defense shall, of course, turn 
about the fact and about the reasons or excuses that the 
accused may offer for his neglect. 

If neither rebuke nor punishment proves effective, the 
Ordinary shall again call in the examiners and discuss the 
facts and excuses with them. If the same culpable neg¬ 
lect continues, and concerns a serious matter, he may re¬ 
move a removable pastor from his parish without further 
ado. An irremovable pastor he shall deprive of either a 
part or the whole of his income, according to the gravity 
of the neglect, and distribute the money among the poor. 
If the ill will should continue and become manifest, the 
Ordinary may remove also an irremovable pastor from his 
parish. 


8. Suspension ex Informata Conscientia 

Ordinaries are allowed ex informata conscientia to sus¬ 
pend their clerical subjects from office, either partly or 
totally. The object of this sentence ex informata con¬ 
scientia is suspension from office. If the suspension is ab 
officio, without further determination or limitation, it for¬ 
bids every act of order, jurisdiction, and administration 
implied in the office itself, except the administration of the 
benefice as such. 

The prelates who may inflict this suspension are here 
simply called Ordinarii, i. e., all who go by the name of 
Ordinary, according to can. 198: residential bishops, abbots 
and prelates nullius, vicars and prefects apostolic, admin¬ 
istrators, and religious superiors of exempt clerical orders. 


SUSPENSION EX INFORMATA 467 

The vicar-general is excluded, unless he has obtained a 
special commission from his bishop (can. 2220, § 2). 

In order, however, to remind Ordinaries of the extra¬ 
ordinary character of this power, they are warned to 
make use of it for no frivolous reasons; in other words, 
they should not inflict suspension ex inf ormata conscientia 
when they can proceed in the judiciary way without grave 
inconvenience (can. 2186, § 2). 

Can. 2188 rules that the decree of suspension must be 
issued in writing, unless the circumstances should advise 
another mode, for instance, when there is a well-founded 
suspicion that the clergyman or others are bent on caus¬ 
ing trouble in any shape or form. The decree must con¬ 
tain the accurate date, i. e., day, month, and year of issue. 
Besides, it must contain the following statements: 

1. ° That the suspension is inflicted ex inf ormata con¬ 
scientia, or for reasons known to the Ordinary; 

2. ° That it is inflicted for a certain clearly expressed 
period of time; 

3. 0 A specification of the acts forbidden if the suspen¬ 
sion is partial only. 

Can. 2189 rules that the Ordinary who suspends a 
cleric ex inf ormata conscientia must have evidence suffi¬ 
cient to be certain (1) that the cleric really perpetrated 
the crime with which he is charged, and (2) that the crime 
is of a nature to deserve such a severe punishment. 

i.° A just and legitimate cause for suspending a cleric 
ex inf ormata conscientia is an occult crime, i.e., one which 
is not yet divulged or has been committed under, or is in¬ 
volved in, circumstances which rende-r it unlikely that it 
will become known. <( Occultum, quod non est publicum,” 
says can. 2197. 

2. 0 Suspension ex inf ormata conscientia can never be 


468 


MODES OF PROCEDURE 


inflicted for a notorious crime because such a crime re¬ 
quires judiciary procedure, in order to safeguard public 
welfare and justice and the authority o-f the law. 

3. 0 The Code makes some concessions to those who 
hold that this suspension may be inflicted also for a 
public crime, but it requires that at least one of the three 
following conditions be present: 

a) That trustworthy and serious witnesses made the 
crime known to the Ordinary, but cannot in any way be 
induced to make depositions at a trial, and no other evi¬ 
dence is at hand to prove the crime in a judiciary way; 

b) that the clergyman would use threats or other means 
to impede or stop a judiciary trial; 

c) that the civil law or a serious scandal stand in the 
way of a formal trial or judicial sentence. This is pos¬ 
sible in countries where the brachium speculare not only 
does not assist but opposes the Church. 

Since there is no judiciary procedure involved, it is 
left to the prudent judgment of the Ordinary to mani¬ 
fest or conceal the reason for the suspension. If he 
deems it prudent to make the reason known to the sus¬ 
pended cleric, he should use pastoral care and charity, in 
order that the penalty inflicted and accompanied by pa¬ 
ternal admonitions, will not only procure an atonement 
of the transgression, but also better the delinquent and 
eliminate further occasions of sin. 

The lawgiver, however, in order not to leave the sus¬ 
pended clergyman entirely defenseless, which would be 
against every dictate of justice, allows him to have re¬ 
course to the Apostolic See (S. C. Concilii). Hence 
there is no appeal to the metropolitan or second instance. 
This recourse has no suspensive, but only a devolutive 
effect, and the suspended clergyman must therefore con¬ 
duct himself as one suspended, and abstain from every 


SUSPENSION EX INFORMATA 469 


act prohibited by the suspension, whether specifically or 
generally stated. 

The Ordinary must forward the papers to the same S. 
Congregation. They must contain the evidence or proofs 
that the clergyman really committed the crime for which 
he was suspended ex informata conscientia. These must 
be sent in trustworthy and correct abstracts bearing the 
official seal and signature. If the witnesses do not ob¬ 
ject, the original documents may be sent, provided a 
faithful translation accompanies the vernacular text. 



PART V 


COERCIVE POWERS OF ORDINARIES 

Of the coercive or punitive power which the Ordinaries 
wield over their delinquent subjects the Code treats in the 
fifth book, the first part of which is devoted to the con¬ 
sideration of crime {delictum) , while the second deals with 
penalties in general, and the third with penalties in partic¬ 
ular. What concerns the subject here under consideration 
may be very briefly stated, and is chiefly contained in the 
second part. We premise a definition of crime . 

A crime, in ecclesiastical law, is an extreme and mor¬ 
ally imputable transgression of a law to which is attached 
a canonical sanction, at least in general. 

Three kinds are distinguished: public, notorious, and 
occult crimes. 

a) A public crime is one committed under, or accom¬ 
panied by, circumstances which point to a possible and 
likely divulgation thereof. 

b) A notorious crime may be such either by notoriety 
of law or of fact. It is notorium iuris if it has become 
an adjudged matter, or is judicially confessed (can. 1750). 
A crime is notorious notorictate facti when it is publicly 
known and has been committed under such circumstances 
that it cannot be concealed by any artifice or be excused 
by any legal assumption or circumstantial evidence. 

c) Every crime which is not public, says the Code, 
is occult or secret, and distinguishes a twofold secrecy, 
vis., merely material ( materialiter occultum), which exists 
when the fact is unknown, or known only to the per- 

470 


PENALTIES IN GENERAL 


47 i 


petrator and a few reticent persons; and formal ( forma- 
liter occultum), when the moral and juridical guilt is un¬ 
known. 


SECTION I 

PENALTIES IN GENERAL 

The Code advises moderation combined with firmness in 
the infliction of penalties, and lays down the rule that 
penalties must be proportionate to the crime, which is to 
be understood according to its imputability as well as the 
scandal and damage caused. 

1. An ecclesiastical penalty means the privation of some 
good, inflicted by lawful authority for the correction of 
a delinquent and in punishment of a crime. Its purpose 
is reformatory and punitive. Every society has, or should 
have, in view this aim,—to protect itself and lead the de¬ 
linquent to a better life. 

2. Three kinds are mentioned: censures or corrective 
(medicinal) penalties, vindictive penalties, and penal rem¬ 
edies and penances. 

3. A fixed penalty latae sententiae as well as ferendae 
sententiae may be established by law ( a hire). For in¬ 
stance, clerics who violate the privilegium canonis against 
cardinals and papal legates incur two penalties ipso iure 
latae sententiae and besides are to be deprived of their 
benefices, offices, dignities, which is a penalty ferendae 
sententiae, although both kinds of penalties are laid down 
in law (can. 2343). 

Ab homine is a penalty which, though established by 
law, is inflicted by way of a special order per modum 
praecepti peculiaris, or by a condemnatory judiciary sen¬ 
tence. 


472 


COERCIVE POWERS 


Penalties must be understood to be ferendae sententiae, 
unless ipso iure or ipso facto, or similiar terms are used. 
The general rule is that a penalty ferendae sententiae re¬ 
quires at least a summary trial. 

Superiors with Coercive Power 

1. Those who wield legislative power, the Pope and 
the Ordinaries, may attach a penal sanction to their laws. 
Vicars-general need a special mandate to do so. 

2. The general rule is that no penalty is to be inflicted 
without a threat or canonical warning. This warning 
must contain a penalty of either ferendae or latae sen¬ 
tentiae before the transgression. For in case the trans¬ 
gression is proved, the penal sanction goes into effect. 
This canonical warning is not required if scandal has been 
given or the transgression is of a particularly serious 
character. 

3. The judge, as such, has only to apply the penalty 
stated in law, and therefore should observe the rules of 
procedure, viz .: 

a) He is not allowed to increase a fixed penalty, unless 
extraordinary circumstances demand a severer punish¬ 
ment ; e. g., the atrocity of a crime, the scandal given, 
etc. The increase may consist of multiplication or added 
intensity; for instance, suspension and detention in a 
house of correction, or suspension from office and bene¬ 
fice, etc; 

b) If the penal law ferendae sententiae is couched in 
arbitrary terms ( verbis facultativis), it is left to the con- I 
science and prudence of the judge to mete out the penalty ! 
or dictate the minimum penalty if this is fixed; 

c) If the wording of the penal law is compulsory (ver- 



WHO ARE SUBJECT TO PENALTIES 473 

bis praeceptivis), the penalty must, as a rule, be inflicted. 
There are precepts couched in the subjunctive or gerun¬ 
dive form, e. g., “privetur” “privandi sunt” “debet puniri, 
suspendi , removeri,” etc. Yet even in this case the leg¬ 
islator leaves it to the conscience and prudence of the 
judge, both of which qualities suppose that he decides 
objectively, not subjectively or under the influence of 
passion. But he may also, if advisable, delay or mitigate 
a penalty already fixed, and abstain from inflicting it in 
case of sincere reform. 

d) Finally, if the sentence is a judiciary one, the judge 
must observe the rules given in can. 1968 ff. for pro¬ 
nouncing sentences. Besides, if a penalty, more especi¬ 
ally a censure, whether latae or ferendae sententiae, is to 
be inflicted by way of a particular order or precept, it 
must be declared to have been incurred ( latae sententiae ), 
or actually inflicted, in writing or before two witnesses, 
and the reasons for it given. 

Who Are Subject To Penal Laws 

The general rule is that those who are subject to laws 
or precepts are also subject to the penal sanctions at¬ 
tached thereto, unless they are expressly exempted. 
Hence 

a) The lawgiver himself is not subject to purely ecclesi¬ 
astical penalties by compulsion (vi coactivd), though 
morally speaking, or from a sense of propriety (vi 
directivd), he may be said to be subject to them. Practi¬ 
cally it is better to say that he is not subject to his own 
penal laws. 

b) Rulers of nations and their offspring and successors 
are immediately subject to the Roman Pontiff, who alone 



474 


COERCIVE POWERS 


can issue a condemnatory or declaratory sentence against 
them (can. 2227, §1). 

c) Cardinals are immune from penal laws, unless they 
are expressly mentioned as subject to them. Thus in the 
Constitution of Pius X, <( Vacante Sede” (e.g., n. 51), 
they are threatened with excommunication latae sententiae 
if they reveal the proceedings of a papal conclave. They 
are also mentioned in can. 2397, concerning the oath they 
have to take. 

d) Bishops are not subject to the penalties latae senten¬ 
tiae of suspension and interdict, unless they are expressly 
mentioned, as in can. 2370 and also in can. 2373. Al¬ 
though the name ‘‘bishop” does not occur in the latter 
canon, it certainly applies to Ordinaries. Other penalties, 
like excommunication and privation of income (can. 2398) 
they may incur. 

e) Exempt religions are subject to the penalties estab¬ 
lished by common law, and as far as the common law sub¬ 
jects them to the coercive power of the local Ordinary. 
Religious zvho do not enjoy the privilege of exemption 
are subject to the penal laws of the Code and also to those 
established by the particular laws of their territory, unless 
their approved Constitutions modify, restrict, or enlarge 
the power of the local Ordinary over them. 

Remission of Penalties 

Penalties may be removed by way of absolution or dis¬ 
pensation. The former is applied to censures, the latter 
to vindictive penalties. Both presuppose jurisdiction over 
the person as well as the matter at issue, because of the 
juridical tie contracted by crime and penalty ( vinculum 
reatus et pocnae) . The judge who ex officio applies a pen¬ 
alty established by a superior, cannot remit the penalty 


CENSURES 


475 

thus inflicted; having rendered the sentence, his office is 
completed. 

The Ordinary may remit all penalties latae senten- 
tiae, either corrective or vindictive, established by common 
law, except the following: 

a) Cases brought before the civil ecclesiastical court, 
as when civil action is instituted in order to obtain dam¬ 
ages for a crime. 

b) Cases reserved to the Apostolic See, either simply, 
or especially, or most especially. 

c) Penalties entailing to hold benefices, offices, dignities 
in the Church, penalties referring to the active and passive 
vote and privation thereof, perpetual suspension, infamy by 
law, privation of advowson, and privileges or favors 
granted by the Apostolic See. 

In occult cases latae sententiae, established by common 
law, the Ordinary as well as any one delegated by him may 
remit the penalties. An exception to this general rule are 
the censures which are reserved either specialissimo or 
speciali modo to the Holy See. In occult cases, the Ordi¬ 
nary may delegate another, as per can. 199, § 2, either for 
each separate case or habitually. 

Censures 

1. A censure is defined by the Code as a penalty 
by which a baptized person, delinquent and contumacious, 
is deprived of certain spiritual benefits, or benefits con¬ 
nected with spiritual ones, until he has given up his contu¬ 
macy and obtained absolution. 

Contumacy may be said to cease (can. 2242, § 3) when 
the delinquent repents of the crime he has committed, 
makes proportionate satisfaction for the damage he has 
done, and repairs the scandal given, or at least seriously 


476 


COERCIVE POWERS 


promises to do so. Whether the repentance is sincere, the 
satisfaction sufficient, or the promise serious, must be 
judged by the one who is asked to give absolution. 

Recourse from censure has only a devolutive effect, i. e., 
the whole case is thrown upon the court of appeal, but the 
one thus censured must conduct himself as if he were cen¬ 
sured, i. e., abstain from every act of order, jurisdiction, 
or administration forbidden by the censure. 

2. Reservation of censures may be made either ab 
homine, i.e., by the lawful superior, or a iure, i.e., as stated 
by a general or particular law. Censures reserved ab 
homine are reserved to the one who inflicted the censure, 
to his superior, successor or delegate. Therefore, if a 
priest has been censured by his bishop, the censure may 
be reserved to the Pope, to the bishop’s successor, or to 
his delegate. 

Censures reserved a iure are: (a) those reserved to the 
Ordinary; (b) those reserved to the Apostolic See; and 
(c) those reserved to no one. To the Apostolic See some 
are reserved (a) simply, some (b) especially, and some 
(c) most especially. 

Censures latae sententiae are reserved only if the reser¬ 
vation is expressly stated in the law or precept which con¬ 
tains or threatens the reservation. If a doubt exists con¬ 
cerning the reservation, it need not be observed, i.e., any 
confessor may absolve therefrom. Reservation of cen¬ 
sures must be strictly interpreted. 

The effect of reservation depends on receiving the 
Sacraments; thus: (a) If it prevents one from receiving 
the Sacraments, a reservation involves reservation of the 
sin to which the censure is attached; (b) If it does not 
prevent one from receiving the Sacraments, the sin is not 
reserved, even though the censure is. 


CENSURES 


477 

If one is excused from the censure, or has been absolved 
therefrom, reservation of the sin ceases entirely. 

Can. 2247, § T forbids Ordinaries to attach another cen¬ 
sure reserved to themselves to a crime already reserved to 
the Apostolic See. But we cannot agree with some 
writers who maintain the invalidity of a censure attached 
by the bis'hop to a censure already reserved to the Apostolic 
See. 

The territorial extent of reservation is thus stated in the 
Code: 

a) The reservation of censures made for a particular 
territory—by way of a territorial law—is restricted to the 
limits of that territory, diocese, or province, and has no 
binding force outside its boundaries, even though the per¬ 
son censured leaves this territory in order to be absolved, 
in other words, if he leaves his-home in fraudem legis. 

b) If, however, an Ordinary or judge would inflict a 
censure and reserve it to himself by virtue of a special or¬ 
dinance or condemnatory sentence (can. 2217, § 1, n. 3), 
such a reserved censure would bind the censured person 
everywhere, so that he could not be absolved unless the 
confessor had obtained special faculties for the purpose. 

There is some comfort in can. 2247, § 3, because a con¬ 
fessor, especially when tired, may not always have all the 
reserved censures present in his mind. Hence, if a con¬ 
fessor, unaware of a reservation, would absolve a penitent 
from censure and guilt, the absolution from censure would 
be valid. Exception, however, is taken to censures in¬ 
flicted ab homine and the four censures “most especially” 
reserved to the Apostolic See. 

3. Absolution from censures is required and may be 
claimed by such as recede from contumacy. A censure 
duly removed never revives. One who has incurred 


478 


COERCIVE POWERS 


several censures must mention them in his petition; but an 
absolution imparted in general terms is valid for all. One 
may be absolved from sin, and therefore be in the state of 
grace, yet remain under censure. On the other hand, 
when there is question of a censure which prevents the re¬ 
ception of the Sacraments, absolution from censure must 
be imparted before absolution from sin can be licitly 
granted. 

The formula of absolution is thus determined: (a) If 
absolution is given in the tribunal of penance (in foro sac- 
rament ali), the usual form contained in the Roman Ritual 
should be employed, (b) In the non-sacramental forum 
(in foro non-sacramentali) , either for the court of con¬ 
science or for the external forum, any formula may be 
used if no excommunication is implied; hence also the 
short formula for the confessional is permitted, (c) If, 
however, absolution is to be given from excommunication, 
the formula prescribed in the Roman Ritual (or Pontifi¬ 
cal) should, as a rule, be employed. 

Absolution given in foro externo affects both fora, the 
internal as well as the external. If the absolution is given 
in foro interno, the person absolved may conduct himself 
as one freed from censure also concerning acts of the ex¬ 
ternal forum, provided the scandal has been removed. 

4. Those empowered to absolve from censure are men¬ 
tioned in can. 2252-2254, which distinguish three classes 
of cases: normal, danger of death, and urgent. 

a) As to normal cases, when there is neither urgency 
nor danger of death, can. 2253 distinguishes as follows: 

(a) From non-reserved censures every duly approved 
confessor may validly and licitly absolve in the tribunal of 
penance. If absolution is to be given outside the confes¬ 
sional, it must be imparted by one who has jurisdiction 
over the delinquent in foro externo. 



CENSURES 


479 


(/?) From censures reserved ab homine, only he who 
has inflicted the censure, or his competent superior, or his 
successor or delegate, can absolve. 

(y) From censures reserved a iure, only the one who 
made the law, his superior, his successor or delegate, can 
absolve. 

The Ordinary may absolve his subjects everywhere 
from censures reserved e pise op o or ordinario; the local 
Ordinary may also absolve peregrini. By “Ordinary” are 
understood all those who go by this name: the bishop, 
vicar-general, adminstrator, apostolic vicars and prefects, 
and major superiors of exempt religious organizations. 

Only the Apostolic Sec can absolve de iure from cen¬ 
sures reserved to itself; every inferior needs faculties, 
which are of a threefold kind: 

i°. A special faculty is required for absolving from 
censures which are reserved to the Apostolic See simplici 
modo. 

2°. A special faculty is required to absolve from cen¬ 
sures reserved to the Apostolic See modo speciali. 

3°. A most special faculty is needed to absolve from 
the four cases reserved to the Apostolic See modo spe- 
cialissimo. 

b) In danger of death one may be absolved by any 
priest , even though that priest has no jurisdiction or facul¬ 
ties to absolve from the censure in question; but after re¬ 
covery, i. e ., after being fully restored to health, the peni¬ 
tent is bound to have recourse to the proper authority, un¬ 
der penalty of falling back into the censure. 

If absolution has been given from a censure reserved 
ab homine , or modo specialissimo reserved to the Apostolic 
See, recourse must be had to the one who inflicted the cen¬ 
sure, if it was a censure ab homine. The recourse must 
be had to the S. Poenitentiaria, or to the bishop, or to an- 


480 


COERCIVE POWERS 


other endowed with the faculty of absolving, if the cen¬ 
sure was a iure, i. e., specialissimo modo reserved to the 
Holy See. 

This recourse implies that the penitent abide by the 
order of the respective superior. The term “mandatis 
parendi” implies willingness and promptness to carry out 
the injunctions given, either orally or in writing. Gener¬ 
ally there is attached to the rescript of absolution the 
clause: “iniunctis de iure iniungendis.” This signifies: 

(a) that the censured party must give satisfaction to 
those who were hurt or damaged by the criminal act for 
which he or she was censured; 

(/?) that if scandal was given it must be repaired; 
(y) that other imposed works, such as sacramental con¬ 
fession or penance, must be accepted. 

Danger of death may be supposed to exist when the 
penitent is in such a state that he has an equal chance of 
life or death, be the danger internal (sickness, wounds, 
birth, old age) or external (war, perilous journey). 

c) In more urgent cases any duly approved confessor 
may validly and licitly absolve from each and every cen¬ 
sure, no matter how and to whom it is reserved, provided 
it is latae sententiae. 

Which cases are more urgent, is explained as follows: 
(a) When these censures cannot be exteriorly observed 
without serious danger of scandal or loss of reputation, 
which may be the case if a priest would be obliged to ex¬ 
ercise the sacred ministry, or if a layman in good standing 
would have to make his Easter Communion; to judge 
whether this case is verified belongs to the confessor. 

(/?) Or if it would be difficult for the penitent to remain 
in the state of grievous sin for the length of time required 
to obtain the necessary faculty from the competent super¬ 
ior. Whether and under what circumstances it would be 


CENSURES 


481 


difficult for a penitent to remain in this state, must be left 
to the judgment of the confessor, who may apply the 
rule: Poenitenti credendum est Therefore, if the 

penitent should say that one day would be hard, we think 
our canon could be applied, though some authors hold 
that a week, or at least three or four days, are required. 

The obligation of the confessor under such circum¬ 
stances is: 

(a) That he absolve in the tribunal of penance; hence 
he cannot absolve outside the confessional, because the 
forum socramentale is not identical with the internal 
forum >4., 

/ 3 ) That he impose on the penitent the strict and griev¬ 
ous obligation of having recourse to the S. Poenitentiaria, 
or to a bishop or other superior endowed with the nec¬ 
essary faculties to absolve him, and to abide by their 
order; 

y) That this recourse be imposed sub poena reinciden- 
tiae, i. e., under the penalty of falling back into specifically 
the same censure from which he is now absolved; 

8 ) To remind the penitent that recourse must be had 
within a month, to be reckoned probably from the day of 
absolution, or at least from the day when he became con¬ 
scious of the obligation; 

e) To tell the penitent that recourse may be had by 
letter, in which case the proper names are to be suppressed 
and fictitious names used, or personally, because a per¬ 
sonal visit to Rome is not excluded; 

£) The confessor should remember that he, too, is 
bound to have recourse to competent authority, unless a 
serious obstacle prevents. 

The penitent is at liberty to approach another confessor 
endowed with the necessary faculties and to obtain abso¬ 
lution from him. This right is granted even in case the 


482 


COERCIVE POWERS 


penitent has already been absolved (in urgent necessity) 
and has had recourse to the competent authority. But 
the penitent must again confess the censured sin to this 
other confessor, in order that the latter may know the na¬ 
ture of the case and impose the necessary injunctions. 
After receiving absolution the penitent has merely to carry 
out the orders given by the second confessor and is not 
bound to abide by the injunctions of the superior to whom 
recourse was had, which may reach him later. 

If, in some extraordinary case, recourse should be mor¬ 
ally impossible, the confessor may grant absolution without 
imposing the obligation of recourse. However^ vi that 
case, another obligation must be imposed, viz., iniunctis de 
iure iniungendis, and a proportionate penance and satis¬ 
faction for the censure. This obligation is so grave that 
if the penitent would not comply with the penance im¬ 
posed and with the demand of satisfaction within the time 
fixed by the confessor, he would fall back into the same 
censure. 

From this favor of omitting the recourse is excluded the 
case of absolutio complicis (can. 2367) ; poverty or the in¬ 
convenience of seeking another confessor are not admitted 
as excuses. 

Here we may insert what can. 2229 rules concern¬ 
ing imputability which does or does not excuse from incur¬ 
ring an ecclesiastical penalty: 

a) Affected ignorance (ignorantia affectata), i.e., the 
kind that is purposely fostered in order to avoid the 
trouble of ascertaining the law and to have a pretext for 
transgressing it, does not render one immune from in¬ 
curring the penalties latae sententiae, no matter whether 
this ignorance concerns the law itself or its penal sanc¬ 
tion,—not even if the law contains words like these: “prae- 


CENSURES 


483 


sumpserit,” “ausus fuerit,” “scienter, studiose, temerarie, 
consulto egerit,” i. e., even though the law expressly de¬ 
mands a dolus. 

b) If the law contains the terms quoted (“praesump - 
serit” etc.) or similar ones, which require full knowledge 
and deliberation, every degree of diminished imputability, 
either of the intellect or the will, renders the offender with 
such lessened responsibility immune from penalties latae 
sententiae. 

c) If the law does not contain the terms “praesump- 
serit,” “ausus fuerit,” etc.: 

(a) Crass or supine ignorance ( ignorantia crassa vcl 
supina) exempts from no penalty latae sententiae. 

(/?) Drunkenness, carelessness, mental weakness, im¬ 
petuous passions do not exempt from penalties latae sen¬ 
tentiae, provided the responsibility, though somewhat di¬ 
minished, is still grievously culpable. 

(y) Grave fear by no means excuses from penalties 
latae sententiae, if the crime involves contempt of faith or 
of ecclesiastical authority, or public damage to souls. 

d) Impuberes, i. e., boys before the fourteenth and girls 
before the twelfth year of age, completed, are excused 
from penalties latae sententiae, and should be punished 
rather by reformatory educational means than by censures 
and severe vindictive penalties. 

Particular censures are: excommunication, interdict, 
suspension. 


1 . Excommunication 

1. Excommunication is always a censure, whereas inter¬ 
dict and suspension may be either censures or vindictive 
penalties; if it is doubtful whether they were inflicted as 


484 


COERCIVE POWERS 


a censure or as a vindictive penalty, they are presumed to 
be censures. 

Suspension is proper to the clergy; an interdict may be 
inflicted also on laymen, nay, even on places. 

There are two terms which the Code frequently uses in 
connection with penalties and explains more particularly: 

a) By divine offices are to be understood those functions 
of the power of order ( potestas ordinis ) which have 
been established by divine or ecclesiastical authority and 
are performed only by the clergy. Such are the celebra¬ 
tion of Holy Mass, the administration of the Sacraments 
and sacramentals (blessings, sepulture, public service, 
preaching, choir service, processions), etc. 

b) Legal ecclesiastical acts are those of official adminis¬ 
trators of ecclesiastical property; those of the following 
persons employed in the ecclesiastical court: judge, au¬ 
ditor, relator, defensor vinculi (for marriage and ordina¬ 
tion), fiscal promotor and promotor of the faith (for 
beatification and canonization), courier and beadle, lawyer 
and proxy; those of sponsors at Baptism and Confirma¬ 
tion ;—the (active) voice or right of voting at ecclesiastical 
elections, including those held by monastic chapters and 
chapters of religious communities and acts of actual (not 
habitual) exercise of the iuspatronatus or advowson. 

What excommunication entails with regard to Ordi¬ 
naries may be summed up as follows: (a) if they are ex¬ 
communicated by a condemnatory or declaratory sentence, 
and, a fortiori, if they are vitandi, they can neither licitly 
nor validly perform acts of jurisdiction except in danger 
of death (can. 2261, 2264) ; (b) after a declaratory or 
condemnatory sentence they are deprived of the revenues 
accruing from their office; (c) a vitandus loses not only 
his income, but also his dignity and office, and the benefice 
which he holds becomes vacant. 



SUSPENSION 


485 


2 . Interdict 

A general interdict which affects an entire parish 
as such, or an entire congregation as such, or a particular 
local interdict, may be inflicted by the bishop, but not by 
the vicar-general. And such an interdict placed by the 
bishop upon a parish must be respected also by exempt 
religious. 

If a cemetery is interdicted, the adjoining church is not 
interdicted. 

The interdict ah ingressu ecclesiae prohibits those thus 
interdicted to celebrate divine offices in any church, to as¬ 
sist at such offices, and to receive ecclesiastical burial (can. 
2277). 


3 . Suspension 

Suspension is a censure by which a cleric is forbidden 
to exercise the rights attached to his office, or benefice, 
or both. The effects, unlike those of excommunication, 
are separable, and hence vary in degree: 

a) A general suspension deprives a cleric of all the 
rights pertaining to his office as well as his benefice; and 
if the suspension is not further determined in the decree 
or precept of the superior or judge, a general suspension 
is to be understood. 

b) A special suspension is twofold : from office or from 
benefice. The special suspension from office may be 
either total or partial, according as all the rights attached 
to the office, or some only, are taken away. The special 
suspension from benefice, too, may be total or partial, 
since the administration of the benefice may be taken 
away, or only its revenues. 


486 


COERCIVE POWERS 


The distinction of latae and ferendae sententiae also 
applies to suspension. 

If suspension from office is inflicted without any fur¬ 
ther restriction, it forbids the exercise of any act of the 
power of order or jurisdiction, and of mere administra¬ 
tion attached to the office itself. But the administration 
of one’s benefice is not withdrawn. Besides, it should 
be noted that the office itself is not lost, for the effect 
touches only the exercise of rights. 

A modification of the effects is admitted by the Code 
under the following conditions: 

a) If a suspension forbids the administration of Sacra¬ 
ments and sacramentals, as is the case in suspensions ab 
officio and a divinis, the suspended cleric may lawfully ad¬ 
minister them only in case he is legitimately requested to 
do so by the faithful, nor is he obliged to ask for the 
reason of the demand. This favor, however, supposes 
that no condemnatory or declaratory sentence has been 
pronounced against him. 

b) When the suspension, e. g., ab officio, a iurisdic- 
tione, a definito et certo ministerio ( e . g., audiendi con- 
fessiones ) forbids an act of jurisdiction either in the in¬ 
ternal or external forum, the act performed under such 
censure is invalid if a condemnatory or declaratory sen¬ 
tence has been pronounced or if the superior has expressly 
declared that the power of jurisdiction is withdrawn; 
but if no such sentence or express declaration has 
been made, the act of jurisdiction is valid, even though 
illicit. Nay, it even becomes lawful if the minister has 
been legitimately asked by the faithful. In danger of 
death the act of jurisdiction which is exercised in giving 
sacramental absolution is valid and licit, even though 
other priests or ministers are available. 


SUSPENSION 


487 


Procedure for Suspension 

Since suspensions are more frequently dealt out than 
one might wish, it is but proper to state in a few words 
the mode of proceeding. 

a) Concerning the suspension ex informata conscientia 
enough has been said above. 

b) There is another suspension mentioned in can. 2222, 
§ 2, which reads: In case of a probable crime, and of a 
crime against which criminal action cannot be brought on 
account of prescription, the lawful superior has not only 
the right, but also the duty, not to promote to either minor 
or higher orders a cleric of whose unfitness he is certain, 
and to prohibit such a cleric from exercising the sacred 
ministry, or even to remove him from office according to 
the rules laid down in can. 2147-2161. The text adds 
that this preventive suspension does not hear the charac¬ 
ter of a penalty. Hence the violation of this suspension 
does not induce the irregularity which otherwise follows 
every breach of penal law, as per can. 985, n. 7. Nor is 
a canonical warning required in this case. 

c) When a suspension, either as a censure or as a vin¬ 
dictive penalty, is yet to be inflicted, either in law or 
by the superior (i. e., a suspension ferendae sententiae) 
a canonical warning must precede, otherwise the penalty 
is null and void and need not be heeded. This warning 
should be clearly worded as to the time, generally ten 
(10) days, and the intention of the superior as to what 
he wants the clergyman to do or to avoid, and admin¬ 
istered according to the rules laid down in can. 2143, 
viz., in the presence of an official of the diocesan court or 
of two witnesses, or by letter, which must be transmitted 


488 


COERCIVE POWERS 


by a trustworthy person or by registered mail with return 
receipt. Then the expiration of the time granted in the 
warning must be awaited before further procedure is 
allowed. A second warning is not required, but may, in 
charity, be given. Besides, it would be well to observe 
the tempus utile, for there may be circumstances which 
do not permit clergymen to answer. After the time 
has elapsed, the suspension may be inflicted, and if so, 
must be intimated to the culprit. A copy of all the writ¬ 
ings and the whole procedure should be kept on file in the 
chancery office. 

d) When a suspension is stated in law, either common 
or particular, viz., a suspension latae sententiae , 1 it is 
left to the discretion of the superior to declare that sus¬ 
pension has been incurred, i. e., to issue a declaratory sen¬ 
tence. However, this sentence must be issued if the in¬ 
terested party insists, or if the public welfare demands it. 
Thus, for instance, a priest who dares to violate the pri- 
vilegium fori against a fellow-priest (can. 2341) is ipso 
facto suspended, and should be declared as such by the 
Ordinary to whom the suspension is reserved, because the 
party as well as the public welfare demand it (see can. 
2223. § 4 )- 

e) If the suspension is reserved only in a certain terri¬ 
tory, iure particulari, the reservation affects only the ter¬ 
ritory for which it is reserved, and none other. But a 
suspension reserved by common law, i. e., by the Code, 
and a suspension inflicted ab homine, as, for instance, the 
suspension ex informata conscicntia, is reserved every¬ 
where and must be observed everywhere (can. 2247, § 2). 
On the other hand, a local Ordinary cannot suspend one 
of his clergymen from an office or a benefice which this 

1 The term latae is from fero, tuli, latum, to bring or give or 
issue, but not from latus, a, urn, wide. 


PENAL REMEDIES 


489 


clergyman holds in another diocese, because in this he 
would be overstepping the limits of his jurisdiction 
(can. 2282). 

f) If a prelate is suspended from the exercise of 
pontificals, he may licitly and validly exercise acts of ju¬ 
risdiction ; but if he is suspended from office or jurisdic¬ 
tion, he cannot validly perform acts of jurisdiction, 
provided this sentence has been declared or inflicted, i. e., 
after a declaratory or condemnatory sentence (can. 2283 
and can. 2265). 


VINDICTIVE PENALTIES 

Vindictive penalties are directly intended for the ex¬ 
piation of crimes, and consequently their relaxation does 
not depend on the mere cessation of contumacy. 

Appeal or recourse from vindictive penalties is ad¬ 
mitted, and this appeal has a suspensive, not merely a 
devolutive effect, unless the law contains an express pro¬ 
vision to the contrary. 

Properly speaking, these penalties, in order to cease, 
need a dispensation which can be granted only by the 
prelate who inflicted the penalty and, therefore, a penalty 
inflicted by common law can be remitted only by the Pope, 
while a penalty inflicted by a particular law or statute 
can be remitted by the one who enacted that particular 
law. 


PENAL REMEDIES AND PENANCES 

There are four kinds of preventive remedies: warn¬ 
ing, correction, order or precept, and surveillance. 

Both warning and rebuke, if public, must be made 
either before a notary,—who in this case may be the 


490 


COERCIVE POWERS 


chancellor,—or in the presence of two witnesses, who 
may be discreet laymen, or by letter, which should be 
registered. They may be made more than once. 

A precept , order, or injunction is a special command 
of the bishop, accompanied by threats of punishment in 
case of disobedience. It may be served after a warning 
or a rebuke has proved ineffective, or if it is likely that 
these two measures, warning and rebuke, will not produce 
the desired effect. 

Surveillance or vigilance may be demanded in a very 
serious case, especially if a person is exposed to the dan¬ 
ger of relapse into the same crime. 

The principal, though not the only, penances are: 

a) To recite certain prayers, e. g., the Penitential 
Psalms, or the Stations of the Cross, or the Rosary; 

b) To make a pilgrimage to a certain shrine, provided 
the penitent has the means and is physically able to do so; 
or to perform some other devotional work, such as taking 
care of the church or of an altar; 

c) To observe special fasts, if one’s work or family 
permits; 

d) To give alms for charitable purposes; 

e) To retire for some days into a religious house. 


SECTION II 

PENALTIES FOR INDIVIDUAL CASES 

(Cans. 2314-2414) 

These penalties (for the most part censures) are here 
briefly set forth according to the gradation of reservation. 
To them will be added other penalties which the Ordi- 



RESERVED EXCOMMUNICATIONS 491 

naries may or should inflict or threaten, as well as the fac¬ 
ulties granted by the Holy See. 

I. Excommunications Reserved to the Holy See 

Modo Specialissimo 

1. Whoever throws away the Sacred Species, or carries 
them off, or retains them for an evil purpose (can. 2320). 

2. Those who lay violent hands on the person of the 
Roman Pontiff (can. 2343, § 1, n. 1). 

3. Any confessor who absolves, or feigns to absolve, an 
accomplice in peccato turpi, even if the accomplice 
does not confess the sin of complicity from which he 
was not yet absolved, but conceals that sin, because he 
was induced by the confessor not to confess it, either 
directly or indirectly (can. 2367). 

4. Confessors who dare ( praesumpserint ) to break the 
seal of confession directly (can. 2369). 

In order to absolve validly and licitly from these four 
• censures a most especial faculty of the Holy See is re¬ 
quired. Neither the Apostolic Delegates, nor the Ordi¬ 
naries, according to Formulary III, issued March 17, 1922, 
possess this faculty. 

II. Excommunications Reserved to the Holy See 

Modo Speciali 

1. All apostates from the Christian faith and all heretics 
and schismatics : 

Incur excommunication ipso facto, and 

Unless they repent, must be deprived of any bene¬ 
fice, dignity, pension or other charge which they may hold 
in the Church, and be declared infamous; clerics, after 
repeated warning, must be deposed. 


492 


COERCIVE POWERS 


If apostates, heretics or schismatics have joined a 
non-Catholic sect, or publicly professed themselves mem¬ 
bers thereof, they are by this very fact ( ipso facto) in¬ 
famous; clerics, after having been warned without result, 
must be degraded and their offices thereby become vacant. 

Absolution from excommunication, mentioned in § i, 
is reserved to the Apostolic See speciali modo, as far as 
it is to be imparted in the court of conscience only. Con¬ 
cerning this absolution, the rules laid down in can. 2248- 
2254 must be consulted; in cases of reasonable doubt, can. 
209. Ordinaries need a special faculty to absolve from 
this censure. 

Absolution in the external forum may be imparted 
by the local Ordinary (but not by the vicar-general with¬ 
out special commission) in the following circumstances: 
(a) If the crime of apostasy, heresy, or schism has been 
in any way brought before the external court of the local 
Ordinary; (b) If the delinquent is repentant, and (c) If 
he abjures his error in juridical form and complies with all 
other prescribed conditions. 

Juridically the crime is before the external court of the 
local Ordinary if a summons has been duly issued. How¬ 
ever, since the Code adds: “quoquo modo ad forum de- 
ductum,” we may adopt the opinion of St. Alphonsus that 
it would be sufficient if the crime had been proved to the 
ecclesiastical judge by at least one witness. This is all the 
more acceptable since our text admits voluntary confession. 

Formulary III grants Ordinaries the faculty to absolve 
all penitents who have incurred the aforesaid penalty on 
account of heresy —apostasy and schism are not mentioned 
—no matter whether they uttered the heresy in the pres¬ 
ence of others or not; but they must denounce the profes¬ 
sional teachers of heresy before absolution, if possible, 
or at least seriously promise to do so afterwards; they 


RESERVED EXCOMMUNICATIONS 


493 


must also, under the same condition, denounce the accom¬ 
plices of these teachers if they are religious or ecclesiastics. 
Abjuration is made secretly before the confessor. From 
this benefit or faculty are excluded those who purposely 
disseminate heresy among Catholics. A wholesome pen¬ 
ance should be imposed on those absolved by virtue of this 
faculty, and the scandal repaired as much as possible. 

2. Those who have published books written by apos¬ 
tates, heretics, or schismatics, or defended such books or 
others nominally forbidden by Apostolic letter, or who 
knowingly read or retain them without due permission 
(can. 2318). 

The above-named Formulary grants the faculty to ab¬ 
solve from this excommunication. We remind the Ordi¬ 
naries that these faculties are to be obtained; they are not 
ipso facto granted by reason of having received the 
Formulary. 

3. Persons not in sacerdotal orders, who pretend to say 
Mass or to hear sacramental confession (can. 2322). 

4. Individuals, of whatever state, rank, or condition, 
who appeal from laws, decrees, or ordinances of a govern¬ 
ing Pope to a future council (can. 2332). 

5. Those who have recourse to the civil power in order 
to impede letters and documents coming from the Apos¬ 
tolic See or from its legates, their promulgation or 
execution (can. 2333). 

6. Those who issue laws, ordinances or decrees against 
the liberty and rights of the Church; also those who, in 
order to impede the exercise of ecclesiastical jurisdiction 
in the external as well as internal forum, either directly or 
indirectly have rcourse to any secular power (can. 2334). 

Ordinaries, by virtue of Formulary III, may absolve 
from this censure, as far as the second clause is concerned 
(impedientes iurisdictionem ecclesiastic am ). 


494 


COERCIVE POWERS 


7. Persons who compel to appear before the civil court 
—against the privilegium fori —Cardinals, legates of the 
Apostolic See, higher officials of the Roman Court, or their 
own Ordinary (can. 2341). 

This includes such as compel the aforesaid persons to 
appear as witnesses. However, it is at least doubtful 
whether this penalty binds in countries where the privile- 
ginni fori does not, de facto, exist. 

8. Those who lay violent hands on Cardinals, legates, 
patriarchs, archbishops, or bishops, even though only 
titular (can. 2343). 

9. Usurpers or retainers of property or rights of the 
Roman Church (can. 2345). 

10. Those who forge or falsify decrees or rescripts of 
the Apostolic See, and those who knowingly make use of 
such falsified documents (can. 2360). 

11. Those who either themselves or through others 
falsely accuse a confessor of the crime of solicitation to 
his superior (can. 2363). 

III. Excommunications Reserved to the Holy See 
Simpliciter 

1. Those who derive profit from indulgences (can. 

2327)- 

2. Those who enlist in Masonic sects or other associa¬ 
tions of the same kind which plot against the Church or 
lawful civil authority (can. 2335). 

Formulary III contains the faculty to absolve such per¬ 
sons, provided they sever their connections with these so¬ 
cieties, denounce ecclesiastics or religious who belong to 
them, and return books, manuscripts and emblems, or at 
least seriously promise to do so. 

3. Those who, without the necessary faculty, dare to 


RESERVED EXCOMMUNICATIONS 495 


absolve any one from excommunication latae sententiae, 
either most especially or especially reserved to the Apos¬ 
tolic See (can. 2338). 

4. Those who aid or favor an excommunicatus vitandus 
in the crime for which he was excommunicated (can. 

2338, § 2). 

5. Those who dare to hale before a lay judge any bishop 
(not their own Ordinary), or an abbot nullius or prelate 
nullius, or one of the major superiors of religious 
institutes (can. 2341). 

6. Those who violate the enclosure of regulars, and 
nuns with papal enclosure who leave their enclosure (can. 
2342 ). 

Faculty 6 of Formulary III of the S. P oeniteniaria 
gives power to absolve those who have, without proper 
permission, entered the enclosure of regulars of either sex, 
and to absolve those who have unlawfully admitted or in¬ 
troduced persons forbidden to enter said enclosure. But 
the absolution is valid only in case the violation of the en¬ 
closure, though committed without evil intent, has not yet 
been brought before the external forum— viz., before a 
summons has been issued. The confessor must impose a 
penance proportionate to the gravity of the guilt. 

7. Those who, either personally or through others, dare 
to appropriate to their own use and usurp ecclesiastical 
property of whatever kind, and those who dare to prevent 
either individual or corporate ecclesiastical persons from 
receiving the fruits or income due to them (can. 2346). 

8. Those who participate in or challenge others to a 
duel, or accept the challenge, or assist at, or purposely 
witness a duel (can. 2351). 

Formulary III grants the faculty to absolve from this 
I censure, provided the case has not yet been brought before 
the ecclesiastical court —ad forum externum nondum de - 



COERCIVE POWERS 


496 

ductum. This means that the duelists have not yet been 
denounced to the Ordinary, and that the latter has not yet 
issued a summons to the parties in question to appear be¬ 
fore his tribunal. After the summons has been intimated, 
the case is certainly ad forum externum deductus. 

9. Clerics in higher orders, and regulars or nuns with 
solemn vows, who presume to contract marriage, even 
though it be only a civil one, and all those who contract 
such a marriage with one of the aforesaid persons (can. 
2388). 

10. Those who commit simony in any ecclesiastical of¬ 
fice, benefice or dignity (can. 2392). 

11. The vicar-capitular (administrator) and members 
of the chapter (our diocesan consultors), as well as out¬ 
siders who either personally or through intermediary per¬ 
sons withdraw, destroy, conceal, or substantially alter any 
document belonging to the episcopal court (can. 2405). 

IV. Excommunications Reserved to the Ordinary 

The Ordinary is entitled to communicate this power, 
which is an ordinary one, to others, either whole, or in 
part, either for all time or for a certain length of time, and, 
therefore, may lawfully and validly insert it in the ‘‘dio¬ 
cesan faculties.” This is plainly stated in can. 199, § 1. 
Should he do it ? We answer that he may take a directive 
norm from can. 897, which tells him that reservation is in¬ 
tended to uproot some inveterate crime and to restore 
discipline. If this is not the case, the Ordinary had better 
make it as lenient as possible. 

1. Those who contract marriage before a non-Catholic 
minister as such, i. e., qua sacris addictus (can. 2319, § 1, 
n ‘ l) * 

2. Those who contract marriage with the implied or ex- 


RESERVED EXCOMMUNICATIONS 497 


press agreement that all or some of the children shall be 
educated outside the Catholic Church (can. 2319, § 1, 
n. 2). 

3. Those who knowingly dare to offer their children to 
non-Catholic ministers for baptism (can. 2319, § 1, n. 3). 

4. Parents, or those holding their place, who knowingly 
offer their children to be educated or brought up in a non- 
Catholic denomination {ib., n. 4). 

5. Those who manufacture false relics or knowingly 
sell or distribute them or have them exposed to public 
veneration by the faithful (can. 2326). 1 

6. Those who lay violent hands on the person of clerics 
or religious of either sex (including novices and members 
of religious associations). 

7. Those who procure abortion, the mother not excepted 
(can. 2350). 

8. Apostate religious of non-exempt and lay institutes 
(can. 2385). 2 

9. All religious with simple vows who presume to con¬ 
tract marriage, and those who contract marriage with such 
a religious (can. 2388). 

V. Excommunication Reserved to No One ( Nemini ) 

1. Authors and publishers who print books of Sacred 
Scripture, or annotations and commentaries thereon, with¬ 
out due permission (can. 2318). 

2. Those who command or compel others to give 
a Christian burial to infidels, apostates from the faith, 
heretics, or other excommunicated or interdicted persons 
(can. 2339). 

1 Also exempt religious are subject to this censure; see can. 
1283. 

2 Apostates of exempt institutes are subject to their own Or¬ 
dinary {can. cit.). 



493 


COERCIVE POWERS 


3. Those who knowingly neglect to obtain the papal in- 
dult required for the alienation of ecclesiastical property 
to the amount of more than 30,000 francs, also those who 
receive anything through such an unlawful deal, as well as 
those who give their consent (can. 2347). 

4. All those who, no matter what their dignity, in any 
way compel a man to embrace the clerical state, and those 
who in any way compel a man or woman to enter the re¬ 
ligious state or to make religious profession, be it solemn 
or simple, perpetual or temporary (can. 2352). 

5. Those who knowingly omit to denounce, within a 
month, a confessor who solicited them ad turpia in the con¬ 
fessional,—from which censure the neglectful penitent 
cannot be absolved unless he or she has complied with or 
seriously promised to satisfy this obligation (can. 2368). 

VI. Interdicts 

1. Corporations such as universities, colleges, chapters 
and other juridical persons who appeal from laws, decrees 
or ordinances of the ruling Pope to a general council (can. 
2332) incur excommunication reserved modo speciali to 
the Holy See. 

2. Those who knowingly celebrate or have others cele¬ 
brate divine offices in interdicted places, and those who 
knowingly admit to the celebration of divine offices clerics 
who have sustained a declaratory or condemnatory sen¬ 
tence of excommunication, interdict or suspension, incur 
the interdict ab ingressu ecclesiae /—reserved to the one 
whose sentence they have disregarded (can. 2338, § 3). 

3. Those who are the cause of a local interdict, or of an 
interdict laid upon a community or corporation, are ipso 
facto personally interdicted (can. 2338, § 4). 

4. Those who, of their own accord, grant Christian 


RESERVED SUSPENSIONS 


499 


burial to such as are not entitled to it, incur the interdict 
ab ingressu ecclesiae, reserved to the Ordinary (can. 
2339)- 


VII. Suspensions 

1. The following incur suspension reserved to the 
Apostolic See: 

a) A bishop who consecrates another, and the as¬ 
sistant bishops or the priests taking their place, as well 
as the one who receives episcopal consecration without 
an Apostolic mandate (can. 2370). 

b) Clerics (also bishops) who have knowingly or¬ 
dained any one, as well as those who have been ordained 
through simony, and those who administer or receive 
other Sacraments simoniacally (can. 2371). 

c) Suspension a divinis is incurred by those who dare 
to receive Orders from an excommunicated, suspended, 
or interdicted minister, provided he had been declared 
to be such or condemned to one of the aforesaid penalties; 
or from a notorious apostate, heretic, or schismatic (can. 
2372). 

d) Religious in higher orders, whose profession has been 
declared null and void on account of deceit admitted by 
them, remain ipso facto suspended until the Apostolic 
See shall have made provision for them (can. 2387). 

2. Suspensions reserved to the Ordinary are: 

a) If a clergyman brings another clergyman of infer¬ 
ior rank before the civil court, without due permission, 
he is suspended from office. In case of exempt religious 
the Ordinary is their superior (can. 2341). 

b) A religious in higher orders, who is a fugitive, in¬ 
curs suspension, which must be understood as total, re¬ 
served to his superior (can. 2386). 


5°° 


COERCIVE POWERS 


3. Suspensions reserved to no one: 

a) Priests who dare to absolve from reserved sins are 
ipso facto suspended from hearing confessions (can. 
2366), if neither by law (can. 900) nor by virtue of 
faculties absolution is rashly imparted. 

b) Ipso facto suspended from the exercise of an order 
illegally received are those who maliciously present them¬ 
selves for ordination without any, or with false, dimis- 
sorial letters, or without having reached the canonical 
age, or who, without observing the prescribed order, per¬ 
mit themselves to be ordained per saltum (can. 2374). 

c) A cleric who dares to resign an ecclesiastical office, 
benefice, or dignity into the hands of laymen, ipso facto 
incurs suspension a divinis (can. 2400). 

d) Abbots nullius or prelates nullius who, being ob¬ 
liged to receive the abbatial blessing, neglect to receive it, 
are ipso facto suspended from jurisdiction (can. 2403). 

e) Vicars-capitular (our administrators) who grant 
dimissorials against the ruling of the law (can. 958, § 1, 
n. 3) ipso facto incur suspension a divinis (can. 2409). 

f) Religious superiors who, against the ruling of the 
law (can. 965-967), dare to send their ordinands to an¬ 
other bishop, are ipso facto suspended from saying mass 
for one month (can. 2410). 

VIII. Degradation , 

which, however, is only fercndae sententiae and, therefore, 
requires a canonical warning in each and every case, may 
be pronounced: 

1. Against clerics who have joined a non-Catholic sect 
or publicly professed themselves to be members thereof 
(can. 2314). 

2. Against clerics who lay violent hands on the person 
of the Roman Pontiff (can. 2343). 


DEPOSITION 


5oi 


3. Against clerics guilty of homicide (can. 2354). 

4. Against clerics guilty of very serious solicitation 
(can. 2368). 

5- Against clerics in higher orders who. after having 
attempted marriage, do not repent (can. 2388). 

IX. Deposition, 

of which the same may be said as of the preceding penalty, 
may be inflicted: 

1. On clerics who apostatize from the Christian faith 
or become heretics or schismatics (can. 2314). 

2. On clerics who desecrate consecrated species (can. 
2320). 

3. On clerics who say Mass though they are not priests 
(can. 2322). 

4. On clerics who desecrate corpses and graves (can. 
2328). 

5. On clerics who procure abortion (can. 2350). 

6. On clerics who commit one of the various crimes 
mentioned in can. 2354, provided they have been found 
guilty in the civil court (can. 2354). 

7. On clerics who are found guilty of very seri¬ 
ous transgressions contra sextum, as mentioned in can. 
2359- 

8. On clerics in higher orders who refuse to wear 
the clerical dress and take up a mode of life incompatible 
with the clerical state (can. 2379). 

9. On clerics who illegally take possession of an 
office, benefice, or dignity, as stated in can. 2394. 

10. On clerics who retain an office, benefice or dignity 
of which they have been lawfully deprived, or from 
which they have been lawfully removed, or who oppose 
such privation or removal (can. 2401). 



502 


COERCIVE POWERS 


X. Infamia Iuris 

1. Ipso facto infamous are: 

a) Those mentiond above (IX, 2) ; 

b) Those mentioned above (IX, 4) ; 

c) Those who presume to lay violent hands on the per¬ 
son of the Roman Pontiff or of Cardinals or legates of the 
Roman Pontiff (can. 2343) ; 

d) Duelers and their seconds or patrini (can. 2351) ; 

e) Bigamists in the true sense of the word (can. 2356) ; 

f) Laymen condemned by the civil court for certain 
crimes contra sexturn with minors, rape, sodomy, incest, 
panderage (can. 2357). 

2. To be declared infamous are: 

a) Apostates, heretics, schismatics (can. 2314) ; 

b) Clerics guilty of crimes mentioned under f), n. 1 
(can. 2359). 

XI. Privation of Office or Benefice 

is either ipso facto incurred, or may be inflicted in certain 
cases. 

1. It is ipso facto incurred: 

a) by an excommunicatus vitandus (can. 2266) ; 

b) By those who have taken possession of another of¬ 
fice or benefice incompatible with one already possessed; 
this illegal retaining of two incompatible benefices entails 
the loss of both (can. 2396) ; 

c) By Cardinals who refuse to take the oath required 
of them (can. 2397) ; 

d) By bishops who neglect to receive the episcopal 
consecration within six months after their appointment 
has been intimated to them (can. 2398). 

2. It must be inflicted : 

a) On concubinares, according to can. 2177 ff.; 


PRIVATION OF OFFICE OR BENEFICE 503 

b) On clerics who become apostates, heretics, or schis¬ 
matics (can. 2314) ; 

c) On conspirators against the authority of the Roman 
Pontiff, or his legate, or their own Ordinary, or against 
the lawful commands of these authorities (can, 2331, § 

2) > 

d) On clerics who remain for six months under the 
censure of suspension, if they do not give up their con¬ 
tumacy within a month from the date of the canonical 
warning (can. 2342, § 2) ; 

e) On clerics who lay violent hands on the person of 
Cardinals or legates of the Roman Pontiff (can. 2343, § 

2) ; 

f) On clerics usurping property of the Roman Church 
(can. 2345) ; 

g) On clerics unjustly usurping other church prop¬ 
erty (can. 2346) ; 

h) On clerics laying hands on themselves (can. 2350, 
§2); 

i) On clerics committing certain crimes mentioned in 
can. 2354; 

k) On clerics guilty of gross transgressions contra sex - 
turn (can. 2359). 

3. It may be inflicted: 

a) On clerics who traffic with Mass stipends or com¬ 
mit fraud by retaining parts of stipends or neglecting 
to say as many Masses as they have received stipends 
(can. 2324) ; 

b) On clerics who join forbidden sects (can. 2335 

f.); 

c) On clerics infringing the liberties or rights of the 
Church or impeding the exercise of ecclesiastical juris¬ 
diction (can. 2334, 2336) ; 

d) On clerics who are guilty of verbal injuries or 


504 


COERCIVE POWERS 


defamation inflicted on other clerics or on laymen, pro¬ 
vided a very serious scandal was given or great damage 
done (can. 2355) ; 

e) On clerics guilty of the crimes mentioned in can. 
2359 ; 

f) On clerics forging or falsifying documents of the 
Apostolic See or using such forged or falsified docu¬ 
ments (can. 2360) ; 

g) On clerics who take illegal possession of an ec¬ 
clesiastical office, benefice, or dignity (can. 2394) ; 

h) On clerics who refuse to make the profession of 
faith, if such is, according to can. 1406, prescribed for 
them (can. 2403) ; 

i) On clerics who withdraw, destroy, conceal, or sub¬ 
stantially alter any document belonging to the episcopal 
court (can. 2405). 

j) Religious superioresses, even of exempt institutes, 
must be punished (if necessary by privation of office) if 
they dare to expend dowries against the law (can. 
549, can. 2412), or if they neglect to notify the local 
Ordinary of the admission of members to novitiate or 
profession (can. 552, can. 2412), or if they interfere with 
the canonical visitation (can. 2413), or act contum¬ 
aciously against the freedom granted by law to religious 
with regard to going to confession (canons 521, 522, 523). 
If, in this last named case, privation of office has been 
declared against a superioress, the S. C. of Religious 
must be immediately informed. 

XII. Privation of the Active and Passive Voice 

I. Ipso iure are deprived of this right: 

a) All exclaustrati, viz., those secularized for a certain 
time only; can. 639; 


ARBITRARY PENALTIES 


505 


b) All secularized religious (can. 640) ; 

c) All apostates from religious institutes; can. 2385. 

2. To be deprived are the following: 

a) Conspirators and disobedient religious according to 
can. 2331, § 2; 

b) Religious guilty of impeding ecclesiastical liberty 
and those who are enrolled in condemned societies, as per 
can. 2336; 

c) Religious who violate the law of enclosure, can. 

2342; 

d) Religious who forge papal documents, according to 
can. 2360; 

e) Those guilty of solicitation; can. 2368, § 1; 

f) Religious who contumaciously refuse to observe the 
common life; can. 2389. 


XIII. Arbitrary Penalties 

must be inflicted on the following: 

1. Usurpers of priestly functions; can. 2322; 

2. Blasphemers and perjurers; can. 2323; 

3. Superstitious and sacrilegious violators of graves; 
can. 2325, 2329; 

4. Those who are disobedient to papal and episcopal 
commands; can. 2331, § 1; 

5. Pastors and priests who excite the people unlaw¬ 
fully; can. 2337; 

6. Those who refuse to execute legacies and last wills; 
can. 2348, and those who refuse to pay their dues; can. 
2349 ; 

7. Those who commit rape; can. 2353; 

8. Forgers of ecclesiastical papers; can. 2362; 

9. Those who rashly violate the seal of confession; 
can. 2369, § 2; 


5°6 


COERCIVE POWERS 


10. Those who present themselves for ordination with- 
out testimonials ; can. 2374; 

11. Priests who refuse to undergo the required examin¬ 
ations or to attend the prescribed pastoral conferences; 
can. 2376, 2377; 

12. Clerics who engage in illicit traffic or trade; can. 
2380; 

13. Pastors who neglect their parish-books; can. 2383; 

14. Those who obstruct the freedom of ecclesiastical 
elections; can. 2390, § 1; and those who do not observe 
the prescribed form of election; can. 2391, § 2; 

15. Those who accept an ecclesiastical office not yet va¬ 
cant ; can. 2395; 

16. Those who abuse ecclesiastical power; can. 2404. 

In inflicting these penalties Ordinaries will do well to 

consider can. 2223, which says that preceptive penalties 
cannot be entirely remitted, but that circumstances of 
time and persons should be taken into consideration. 


FACULTIES GRANTED 
BY THE APOSTOLIC SEE 


APPENDIX 

What is said in the body of this work on faculties in 
general and in particular will be amply sufficient for 
understanding and exercising the same. The following 
brief rehearsal was made as an aid to the memory. 

I. NATURE AND EXTENT 

Faculties partake of the nature of a privilege beyond 
the law (praeter ius). They should, therefore, be rather 
amplified than restricted, unless a contrary clause pro¬ 
vides otherwise. Consequently: 

a) Faculties may be exercised by the Ordinary as far 
as his jurisdiction extends (intra fines iurisdictionis ). 
But this must be understood of voluntary or non-judiciary 
jurisdiction, for instance, dispensation from fasting. 1 
Whenever a dispute or contentious matter is concerned, 
a faculty cannot be applied outside one’s territory, even 
though it might otherwise be applied to one’s own subject 
living in another diocese. The faculties for absolving 
may be everywhere exercised over one’s own subjects. 2 
Those of dispensing from the impediments of mixed 
religion and disparity of worship may be exercised in 
behalf of subjects living outside one’s own territory. 
However, it may not be useless to add that Ordinaries 

1 See can. 201, § 3; cfr. our Commentary, Vol. II, 180. 

2 See can. 201, §§ 2, 3; can. 881, § 2; can. 1637. 

507 


5°8 


FACULTIES 


should be careful in applying such faculties to their 
subjects living outside their own (the Ordinary’s) 
diocese, because circumstances may have changed in the 
meantime or may entirely differ from those prevailing 
in the other diocese. For the rest, most of the faculties 
granted by virtue of Formulary III are such as call for no 
application outside one’s own diocese, especially since the 
other Ordinary most probably also enjoys the same 
faculties. 

b) Those who possess the faculties may apply them 
to themselves, provided such faculties do not exceed 
voluntary jurisdiction. 3 Thus a bishop may make use 
of the faculties granted by the S. Poenitentiaria in his 
own favor by granting the faculty to his confessor, or 
he may confirm himself as confessor of Sisters for a 
fourth and fifth term (IV, 6). 

c) Whenever there is a doubt as to the sufficiency of 
the cause, the faculties may be licitly and validly exer¬ 
cised, and the petitioner may also lawfully ask for the 
application when he is in the same condition of doubt. 4 

d) Faculties may be granted for the forum internum 
as well as externum, and if granted or applied in the 
external forum, the act is also valid for the internal 
forum, for instance, a dispensation from a marriage 
impediment; and unless the nature of the case forbids, 
or the contrary is expressly stated, a faculty is intended 
for both. The faculty granted for the internal is not 
valid for the external forum, but may be applied outside 
the confessional. 6 

e) Finally faculties may be bulked, or to use a more 
scientific term, they are cumulative. This privilege is 

3 Can. 201, §§ 2, 3. 

4 Can. 84, § 2. 

5 Can. 202. 


RECIPIENTS 


509 


especially valuable with regard to matrimonial dispensa¬ 
tions. But these must be applied according to the rules 
laid down in can. 1049-1051 (above, pp. 276 ff.). 

II. RECIPIENTS 

First and above all it should be duly noted that the 
fact of having received Formulary III does not convey 
the actual grant of these faculties. Hence the wording 
at the beginning of the Formulary: “Possunt a re¬ 
spective SS. Congregationibus facilitates quae sequuntur 
impetrarc; salvis clausulis in rescriptis quoad usum 
facultatum adpositis.” Hence application must be made 
to the Congregations which issue the different faculties. 
This is done in order to safeguard the juridical and 
financial competency of the respective Congregations. 

1. The local Ordinary should petition for the necessary 
faculties, and they are addressed to him, for instance, 
S. C., vigore facultatum a SSmo. D. N. Pio Papa XI sibi 
tributarum, Ordinario N . in America, etc. 

2. By virtue of can. 66, § 2 these faculties do not 
expire with the authority of the Ordinary (or of any other 
person who goes by that name, according to can. 198, 
§ 1), to whom they have been granted, but pass to those 
who succeed him in office; faculties granted to the bishop 
are intended also for the vicar-general. The latter, there¬ 
fore, enjoys the same faculties with the same rights and 
consequences as the bishop himself, and he does not 
require a special subdelegation or communication, except 
that he must know the text of the faculties, which, there¬ 
fore, should be communicated to him by the bishop. Ex¬ 
ceptions to this general rule must be made with regard to 
faculties the execution of which requires episcopal con¬ 
secration, for instance, S. Rit. C., V, 9 - Abbots do not 


FACULTIES 


5 io 

receive these faculties because they are not “local” 
Ordinaries. 

3. These faculties may also be subdelegated, according 
to the rules laid down in can. 199. This subdelegation 
may be made habitually, or for certain determined cases. 
Only when subdelegation is strictly forbidden, or the 
faculty is granted for purely personal reasons, is sub¬ 
delegation excluded. Thus S. Rit. C., V, M (blessing of 
devotional articles) is granted to the bishop or Ordinary 
only, and can, therefore, not be subdelegated. 8 

III. EXECUTION 

1. The local Ordinary must take mention of the delega¬ 
tion received when he executes dispensations, according 
to can. 1057. However, the violation of this rule does 
not invalidate the dispensation. 7 The law does not pro¬ 
vide that the subdelegation must be mentioned, and there 
is no set formula for mentioning the delegation, hence any 
form is admissible. Above we have quoted the formula 
used by the SS. Congregations, viz.: <( vigor e facultatum 
a S. C. de disciplina Sacramentorum nobis tributarum!* 

2. The time from when the faculties commence to take 
effect ( tempus a quo currunt) would, at first blush, seem 
to be the day on which they are signed by the Prefect of 
the S. Congregation (can. 38). However, it appears 
more probable or rather certain, to say that it is the day 
when they are received by the Ordinary. 8 Consequently, 

6 In the Forma maior of the faculties granted by the S. C. of 
the Propaganda the faculties which may be subdelegated are 
marked with an asterisk. 

7 S. O., June 15, 1875 (Coll. P. F., 1907, n. 1444) ; see our 
Commentary, Vol. V, 134. 

8 S. C. P. F,, April 2, 1644; Jan. 22, 1759 (Coll. P. F., nn. 100, 
412). 


EXECUTION 


5 ii 

if the faculties of Formulary III were received on 
March 26, 1924, these faculties, being as a rule quin¬ 
quennial, last until March 26, 1929. It is not necessary, 
we believe, to demand mathematical accuracy, as described 
in can. 34, if only the day corresponds with the terminus 
a quo. Thus, in the example stated above, from 
March 26, 1924, to March 26, 1929. Any other assump¬ 
tion would place the Ordinaries into the unpleasant condi¬ 
tion of doubt and anxiety; they would have to remem¬ 
ber or record the precise minute when they received the 
faculties. We also refer the Ordinaries to can. 207 § 2, 
and can. 209, the former of which states that a faculty 
(actus) of the internal forum exercised by inadvertence 
after it has lapsed, is valid, while the latter says: “sup- 
plet ecclesia” in cases of common error or a posi¬ 
tive or probable doubt. This (< supplet” holds for both 
fora. 

The duration or length of time for which the faculties 
are granted is five years (facultates quinquennales). 
For the first time these faculties may be asked for out¬ 
side the time otherwise fixed for making this petition. 
But in this case they last only until the time for sending 
in the diocesan report has been completed. As a rule, 
these faculties must be petitioned for at the time when 
the diocesan report is to be submitted, according to can. 
340. This time for our American bishops is the year 
1924, and every five years thereafter. The time for 
sending the report is one full year, viz., from the first 
of Jan. 1924 to the last day of the same year. From this 
we may again conclude that the duration of the quinquen¬ 
nial faculties need not be calculated with mathematical 
accuracy. 

3. Concerning the taxes to be paid to the SS. Congre¬ 
gations, these are mentioned in the grant by each Con- 


512 


FACULTIES 


gregation. The Holy Office reckons with dollars, the 
other Congregations either prescribe no fixed sum, or set 
down the amount expected in Italian lire. Whenever a 
tax is demanded the S. Congregation requires that the 
total amount received for granting the favor by the Ordi¬ 
nary should be forwarded to the respective Congrega¬ 
tion at the end of each year, not every five years. Take, 
for instance, the taxes established by the Holy Office: 

“Taxa exquiri solita pro qualibet dispcnsatione—quam 
R.P.D. Ordinarius exiget, nisi pro casuum diversitate 
sit moderanda aut dispensanda ob paupertatem oratorum 
aliasve iustas causas—est trium dollar.” 

“R.D. Ordinarius in fine cuiuslibet anni directe 
mittet ad hanc Supremam S. Congregationem quas taxas 
ipse reapse exegerit, detractd vero quinta parte, quant 
pro sui suaeque dioecesis necessitatibus retinere potcrit.” 

Hence the Ordinary may retain for himself sixty cents 
of the fee received for each and every dispensation. But 
he is not allowed to charge more than $3.00; if he does, 
he is obliged to restitution, as per can. 1056. For, if he 
should calculate the expenses for writing and expediting, 
the clause of said faculty clearly states for what purpose 
the fifth part (60 cents) is intended, vis., “for his own 
needs and those of his diocese. ,, On the other hand, the 
text permits the Ordinary to remit the tax ($3.00), 
either entirely or partly if circumstances should 
require or advise such a remission. The reasons for 
moderating or dispensing from the fixed tax, says the 
text, may be either “poverty or other just causes.” 
Poverty is a relative term, but we may safely assume that 
it is to be taken as including everyone who lives by his 
daily labor or wage, and has no other income. The 
“other reasons” may be of a personal nature, as for 


GRANTED BY THE HOLY OFFICE 


5i3 


instance, objections on the part of the non-Catholic party, 
or a fixed idea” of the Catholic party that taxes savor 
of simony. 

It is evident that if the Ordinary does not receive 
anything for the execution of a faculty, he is not obliged 
to send anything to Rome. 


A. Faculties Granted by the Holy Office 

I. Dispensandi, iustis gravibusque accedentibus causis, 
cum subditis etiam extra territorium aut non subditis 
intra limites proprii territorii, super impedimento mix- 
tae religionis, et, si casus ferat, etiam super impedi¬ 
mento disparitatis cultus, ad cautclam; quatenus ante 
nuptias pars acatholica ad veram religionem adduci aut 
catliolica ab ipsis nuptiis absterrcri nequiverit, dummodo 
prius regulariter ad pracscriptum Cod. I. C., can. 1061, 
§ 2, cautum omnino sit conditionibus ab Ecclesia requisitis, 
et Ipse R. P. D. Ordinarius moraliter certus sit eas- 
dem impletum iri, scilicet: ex parte nupturientis acatho- 
lici de amovendo a parte catholic a perversionis periculo, 
et ab utroque contrahente de universe prole utriusque 
sexus in catholicae religionis sanctitate omnino baptizanda 
et educanda; declarata insuper parti catholicae obligatione, 
qua tenetur f prudenter curandi conversionem coniugis ad 
fidem catholicam. 

Nupturientes autem moneantur se, ante vel post matri- 
monium coram Ecclesia initum, ministrum quoque acatho- 
licum ad matrimonialem consensum praestandum vel 
renovandum adire non posse, ad mentem Cod. I. C ., can. 
1063, § 1, sub poena excommunicationis latae sententiae 
Ordinario reservatae a parte catholica incurrendae, iuxta 
can. 2319, § 1, n. 1, stride caeteroquin servatis quae de 


FACULTIES 


5H 

parochi in casu agendi ratione statuta sunt in can. 1063, 

§ 2. 

Quodsi partes actu in concubinatu vivant, provideatur 
opportunis modis ut scandalum, si adsit, removeatur et 
pars catholica ad gratiam Dei recipiendam rite dispo- 
natur, praevia eius absolutione ab excommunicatione con- 
tracta, si forte matrimonium attentatum fuerit coram 
ministro acatholico, eique impositis congruis poenitentiis 
salutaribus. 

II. Dispensandi iustis gravibusque accedentibus causis 
cum subditis etiam extra territorium, aut non subditis 
intra limites proprii territorii super impediment0 dispari- 
tatis cultus (cxcepto tamen casu matrimonii cum parte 
iudaica aut mahumetana) ; quatenus sine contumelia 
Creatoris id fieri possit et ante nuptias pars non baptizata 
ad veram religionem adduci aut catholica ab ipsis nuptiis 
absterreri nequiverit, dummodo prius regulariter ad 
praescriptum Cod. I. C., can. 1061, § 2, cautum omnino 
sit conditionibus ab Ecclesia requisitis, et Ipse R. P. D. 
Ordinarius moraliter certus sit easdem impletum 
iri, scilicet: ex parte nupturientis non baptizati de amo- 
vendo a parte catholica pcrversionis periculo et ab 
utroque contraliente de universa prole utriusque sexus 
in catholicae religionis sanctitate omnino baptizanda et 
educanda; dcclarata insuper parti catholicae obligatione, 
qua tenctur, prudenter curandi conversionem coniugis 
ad fidem catholicam. 

Nupturientes autem moneantur sc, ante vel post matri¬ 
monium coram Ecclesia initum, ministrum quoque falsi 
cultus ad matrimonialem consensum praestandum adire 
non posse, ad mentem Cod. I. C., can. 1063, § 1; stride 
caeteroquin servatis quae de parochi agendi ratione in 
casu statuta sunt in Can. 1063, § 2. Quod vero attinet 
ad legitimationem prolis, prae oculis habeatur can. 1051, 


GRANTED BY THE HOLY OFFICE 515 


Quod si partes actu in concubinatu vivant, provideatur 
opportunis modis ut scandalum, si adsit, removeatur, et 
pars catholica ad gratiam Dei recipiendam rite disponatur. 

In reliquis, quod refertur ad publicationes, interroga- 
tiones de consensu et sacros ritus, sive agatnr de impedi- 
mcnto mixtae religionis she disparitatis cultus, scrventur 
praescripta Cod. I. C., can. 1026, 1102, 1109) ; et huius- 
modi nuptiis celebratis, she in proprio, she in alicno 
territorio, R. P. D. Ordinarius invigilet ut coniuges 
promissiones factas fideliter implcant. 

III. Sanandi in radice matrimonia attentata coram 
oihciali chili vel ministro acatholico a suis subditis etiam 
extra territorium, aut non subditis, intra limitcs proprii 
territorii, cum impediment0 mixtae religionis aut dispari¬ 
tatis cultus, dummodo consensus in utroque coniuge per- 
severct, isque legitime renovari non possit, she quia pars 
acatholica de invaliditate matrimonii moneri ncqueat sine 
pcriculo gravis damni aut incommodi a catholico coniuge 
subeundi; she quia pars acatholica ad renovandum coram 
Ecclcsia matrimonialem consensum, aut cautioncs prae- 
standas, ad praescriptum Cod. I. C., can. 1061, § 2, ullo 
modo induci ncqueat; dummodo aliud non obstet canoni- 
cum impedimentum dirimens, super quo Ipse dispensandi 
aut sanandi facultate non polleat. 

Ipse autem R.P.D. Ordinarius serio moneat partem 
catholicam de gravissimo patrato scelere, salutares ei 
poenitentias imponat, et si casus ferat, earn ab excom- 
municatione absolvat iuxta Cod. I. C., can. 2319* § L L 
simulque declaret ob sanationis gratiam a se acceptantam, 
matrimonium effcctum esse validum, legitimum et in¬ 
dissoluble iure divino et prolem forte susceptam vel sus- 
cipiendam legitimam esse; eique insuper gravibus verbis 
in mentem revocet obligationcm, qua semper tenctur, pro 
viribus tutandi baptismum et cducationem unhersae 


FACULTIES 


5i6 

prolis utriusque sexus, tarn forte natae quam forsitan 
nasciturae, in catholicae religionis sanctitate et prudenter 
curandi conversionem coningis ad fidem catholicam. 
Cum autem dc matrimonii validitate et prolis legitimatione 
in foro externo constare debeat, R.P.D. Ordinarius 
mandet ut singulis vicibus documentum sanationis cum 
attestatione peractae executionis diligenter custodiatur in 
Curia locali, necnon curet, nisi pro sua prudentia aliter 
iudicaverit, ut in libro paroeciae, ubi pars catholica bap- 
tismum recepit, transcribatur notitia sanationis matri¬ 
monii, de quo actum est, cum adnotatione diei et anni. 

In singulis autem praefatis sive dispensationibus sive 
sanationibus concedendis, R.P.D. Ordinarius expressam 
faciat mentionem Apostolicac delegationis {Cod. I. C., 
can. 1057) ; et quod attinet ad facultatem sanandi in 
radice, mens est S. Congregationis ut Ipse parochos, sin¬ 
gulis vicibus, subdelegare possit. 

Praesentibus valituris usque ad annum proximae re- 
lationis dioecesanae quo tempore elapso, referatur sive 
dispensationum sive sanationum concessarum numerus 
Supremae S. Congregationi S. Officii. Contrariis quibus- 
cumque non obstantibus. 

Sequcntes facultates per se ipsum tamen exercen- 
das, seu nemini delegandas ctiam concessit die quo 
supra, Ordinario N. S. Ofdcium, scilicet: 

I. Ut concedere valeat, non ultra triennium, licentiam 
legendi ac rctinendi, sub custodia tamen ne ad aliorum 
manus pcrveniant, libros quoscumque prohititos et ephe- 
mcrides, non exceptis operibus haeresim vel schisma ex 
profcsso propugnantibus, vel etiam ipsa religionis funda- 
menta evertere nitentibus, iis christifidelibus sibi sub- 
ditis, qui eorumdcm lectione, sive ad effectum eos impu- 
gnandi sive in s. ministerii vel proprii muneris hone- 


GRANTED BY THE HOLY OFFICE 517 

storumque studiorum subsidium, vere indigeant; exceptis 
operibus de obscoenis ex professo tractantibus. 

II. Ut pariter concedere valeat, sub eadem temporis 
duratione, adolescentibus utriusque sexus, qui in publicis 
scholis, studiorum causa, versari debent, licentiam legendi 
ac retinendi, sub custodia tamen, ut supra, ne ad aliorum 
manus perveniant, libros prohibitos, quos laicae potestatis 
imperio, vel ex necessitate studiorum, prae manibus habere 
coguntur, quamdiu in ea necessitate versantur, exceptis 
operibus de obscoenis ex professo tractantibus. 

Graviter onerata Ordinarii ipsius conscientia super reali 
harum omnium conditionum concursu.—Praesentibus ad 
annum proximae Relationis dioecesanae valituris. Con- 
trariis quibuscumque non obstantibus. 

I. To dispense, for just and grave reasons, his sub¬ 
jects, though they may live outside his territory or dio¬ 
cese, and also non-subjects living in his diocese, from 
the impediment of mixed religion, and if necessary, to 
grant provisional dispensation from the impediment of 
disparity of cult, in case the non-Catholic party cannot, 
before marriage, be induced to embrace the true religion, 
or the Catholic party cannot be restrained from the pro¬ 
spective marriage;—provided, as a rule, that can. 1061, 
§ 2 be observed and the conditions accepted and the 
Ordinary himself be morally certain that the conditions 
shall be complied with, vie:.: on the part of the non- 
Catholic party that she or he remove every danger of 
perversion from the Catholic party, and that both parties 
promise to baptize and educate all the children of both 
sexes in the holy Catholic religion; besides, that the Cath¬ 
olic party be told of the obligation by which he or she is 
held prudently to procure the conversion of the non- 
Catholic party to the Catholic faith. 


FACULTIES 


5i8 

The parties shall, besides, be warned that they are not 
allowed, either before or after their marriage before the 
Church, to go to a non-Catholic minister in order to give 
or renew their matrimonial consent, as per can. 1063, § L 
under penalty of excommunication reserved to the local 
Ordinary incurred ipso facto by the Catholic party; for 
the rest, strict observance is required on the part of the 
pastor, how he should act in case can. 1063, § 2 be veri¬ 
fied, viz., if he foresees a violation of this clause. 

If the parties are living in concubinage, the possible 
scandal should be removed by suitable means and the 
Catholic party be prepared for receiving the grace of God 
by absolution from excommunication, if such was con¬ 
tracted, perhaps by reason of an attempted marriage be¬ 
fore a non-Catholic minister; and proportionate whole¬ 
some penances should be imposed. 

Concerning the impediment of mixed religion, the 
faculty must be explained according to can. 1061, to 
which the reader is referred. 9 The first clause with the 
conditional phrase, “dummodo prius” as far as “declarata 
insuper,” involves an invalidating condition, which means 
that, if the Ordinary has no moral certainty as to the ful¬ 
fillment of the two cantioncs, he cannot validly or licitly 
grant the dispensation. If the two cautiones were duly 
signed, moral certainty is presumed, for it is the general 
means of obtaining a valid contract. Moral certainty is 
more than probability or conjecture, but means that the 
mind can be satisfied and is ready to assent to a proposi¬ 
tion. What may happen afterwards cannot be foreseen. 
Note that there is no “dummodo” (provided) in the 
second and third paragraph (“nupturientes” and “quodsi 
partes”), which omission indicates that they are to be 

9 See our Commentary, Vol. V, pp. 147 ff. 


GRANTED BY THE HOLY OFFICE 519 

taken seriously indeed, but not as invalidating clauses. 
The “scandalum removere” in the third phrase is verified 
if the parties are separated, when possible, without 
greater scandal, or if their marriage, now made lawful, is 
properly announced. 

There is in this faculty no clause which forbids bulk¬ 
ing. Such a prohibitive clause would be: “nec aliud 
obstet canonicum impedimentum” Therefore the Ordi¬ 
nary may apply this faculty even in case he has to apply 
one of the faculties granted by the S. C. of the 
Sacraments. 

Finally, attention may be drawn to the words of the 
first paragraph: “et, si casus ferat, etiam super im- 
pedimcnto disparitatis cultus” which is a provisional ac¬ 
cessory to the faculty, in order to render it effective in 
case the impediment should de facto be one of disparity 
of worship. It is not absolutely necessary to express it 
in writing, but it should at least be made mentally, i. e., the 
Ordinary must have the intention to grant the faculty 
according to the power given by the Holy See. 

II. The second faculty granted by the Holy Office is 
that of dispensing from the impediment of disparity of 
worship ( disparitas cultus). The wording of the first 
paragraph is almost identical with that of the first faculty. 
There are only two phrases which call for a brief ex¬ 
planation. “Excepto tamen casu matrimonii cum parte 
iudaica aut mahumetana” means that this faculty cannot 
be validly or licitly applied to a case where a Catholic 
wishes to marry a Jew or Mohammedan. 10 f( Quatenus 
sine contumelia Creatoris id fieri potest ” as far as this 
can be done without offence to the Creator, has the same 

10 Vicars Apostolic enjoy the faculty also in these two cases; 
Facult., Forma maior, n. 21. 


520 


FACULTIES 


meaning as “sine contumelia Creatoris” in the Pauline 
Privilege: it excludes blasphemy, immoral conduct on 
the part of the non-baptized, continual dissension. 11 But 
“quatenus” has not the same force as “dummodo,” and 
therefore the clause cannot be looked upon as invalidat¬ 
ing. It is merely a warning or an exhortation to the 
Ordinary to be circumspect and to inquire into the be¬ 
havior of the non-Catholic party. 

The second and third paragraphs are almost the same 
as the corresponding paragraphs of the first faculty. 
Only in the second paragraph the addition must not be 
overlooked as to the legitimation of the offspring, for 
which can. 1051 should be consulted. 12 

In whatever concerns the publication of the banns, the 
asking of the consent, the sacred rites with regard to 
marriages contracted with the impediment of either mixed 
religion or disparity of worship, the rules laid down in 
canons 1026, 1102, and 1109 must be observed. 13 After 
the celebration of such marriages, whether performed in 
his own or in another diocese, the Ordinary should see 
to it that the promises are faithfully kept. 

The Ordinary here mentioned is the one who has 
granted the dispensation; if the marriage was performed 
in another diocese, the Ordinary who granted the dispen¬ 
sation should exercise this vigilance through the Ordi¬ 
nary of that diocese. The immediate watchman will be 
the pastor—provided he knows of the mixed marriage 
and can prudently approach the couple. 

III. To heal in the root (sanatio in radice) such mar¬ 
riages of their subjects, though not at present living in 
their diocese, and of others who actuallly live in their 

11 See our Commentary, Vol. V, 350. 

12 See above, pp. 285 ff. 

13 See our Commentary, Vol. V, 305 ff. 


GRANTED BY THE HOLY OFFICE 521 


diocese, which were contracted before the civil magistrate 
or a non-Catholic minister, notwithstanding the im¬ 
pediment of mixed religion or disparity of cult: pro¬ 
vided the consent continues in both parties, but cannot be 
lawfully renewed, either because the non-Catholic party 
cannot be apprized of the invalidity of the marriage 
without danger of serious damage or inconvenience to 
the Catholic party, or because the non-Catholic party can 
not be brought to renew the consent or to make the 
promises ( cautiones ), according to can. 1061, § 2; pro¬ 
vided, also, there be no other diriment impediment, which 
the Ordinaries have no faculty to dispense from or to 
heal. 

Concerning sanatio, see can. 1138, which defines the 
nature of that process. Here the faculty is granted for 
the sanatio of a marriage which is invalid by reason of 
the neglect of the prescribed form, and perhaps also in¬ 
valid by reason of the diriment impediment of cultus dis- 
paritas (for mixto religio, as such, does not render a 
marriage invalid). 

There are two essential clauses attached to the use of 
this faculty. The first is that the matrimonial con¬ 
sent, once given by both parties, perseveres or continues. 
For sanatio implies revalidation and dispensation from 
renewing the consent which is the “root” to be “healed.” 
From this consent no power can dispense. The reason 
why dispensation is given lies in the moral or physical 
impossibility to have the consent renewed properly. A 
moral reason would be if the Catholic party were ex¬ 
posed to the danger of serious damage or inconvenience, 
viz., if there would be danger of one party leaving the 
other, or if quarrels, suspicion, aspersions should arise. 
Physical impossibility is the flat refusal of one party to 
renew the consent, which not infrequently happens, be- 


5 22 


FACULTIES 


cause the civil ceremony appears to them as sufficient, and 
the renewal as a slap at the civil government. The 
second essential clause is that no other diriment impedi¬ 
ment exist from which the Ordinaries have no faculties 
to dispense. 

The Church does not ‘‘heal” any marriage which is 
invalid by reason of a diriment impediment of the natural 
or divine law, but only such as are invalid by reason 
of an ecclesiastical impediment. If an Ordinary had 
obtained faculties from the S. C. of the Sacraments (see 
next section, B), and another impediment besides mixed 
marriage or disparity of cult were in the way of a sanatio, 
he could apply both faculties at once, i. e., bulk them. 
This is clearly expressed in the second conditional clause, 
“super quo ” etc. 

In the following paragraph are contained some sane 
admonitions. The first says that the Ordinary shall 
remind the Catholic party of the grievous offence com¬ 
mitted, 14 impose a salutary penance, and, if necessary, 
impart absolution from the censure (can. 2319, §1, n. 1) ; 
he shall tell the party that by the sanatio the marriage was 
rendered valid, lawful, and indissoluble by divine law 
and all the offspring already born, or yet to be born, is 
legitimated. He shall point out the strict obligation to 
have all the children of both sexes baptized and educated 
in the Catholic religion and prudently to procure the con¬ 
version of the non-Catholic consort to the Catholic faith. 
Although this obligation is a grievous one, yet its omis¬ 
sion does not invalidate the sanatio. The same is true 
of the next paragraph, “Cum autem,” which instructs 
the Ordinary to command that in each case a copy of the 

14 The terms to be used in applying this admonition are left 
to the prudent judgment of the Ordinary, who will duly consider 
the moral and intellectual qualities of the respective parties. 


BY THE S. C. OF THE SACRAMENTS 523 


sanatio with the attestation of its execution be deposited 
in the diocesan archives and to see to it that a dated 
record of the sanatio is inserted in the parochial book 
of the parish where the Catholic party was baptized. 

In the exercise of every dispensation or sanatio thus 
granted, the local Ordinary shall mention the Apostolic 
delegation (can. 1057). In regard to the sanatio in 
radice it is the mind of the S. Congregation that the 
Ordinary may subdelegate only pastors. This rule 
implies that while other priests may be subdelegated for 
other dispensations (either habitually or for certain cases, 
can. 199, § 2) only pastors may be subdelegated for 
the sanatio, —not habitually, however, but only for each 
and every case, hie et nunc. 

The Holy Office also grants two faculties for the read¬ 
ing of forbidden books, concerning which enough has 
been said above, pp. 354 ff. We only add that no taxes 
are charged by the Holy Office for these two dispensa¬ 
tions and no taxes are to be charged from those to whom 
the faculties are granted, except for postage and clerical 
labor. 

B. Faculties Granted by the S. C. of the Sacraments 

Sacra Congregatio de Disciplina S acr ament or um, vigore 
facultatum a SSmo D. N. Pio Papa XI sibi tributarum, 
Ordinario N. in America, infrascriptas facidtates, quibus 
sive per se sive per alias idoneas ecclesiasticas personas 
ad hoc specialiter deputandas, uti poterit in matrimoniis 
contrahendis et nulliter contractis cum suis subditis ubique 
commorantibus et aliis omnibus in proprio territorio actu 
degentibus, facta in unoquoque casu expressa mentionc 
huius apostolicae delegations ad norman can. 1057. 

i.° Dispensandi iusta et rationaeili ex causa super 


5 2 4 


FACULTIES 


MATRIMONIALIBUS IMPEDIMENTIS MINORIS GRADUS quae 
in Can. 1042 recensentur, nec non super impedimentis 
impedientibus de quibus in Can. 1056, ad cffectum tantum 
matrimonium contrahendi. 

2° Dispensandi ex gravi urgentique causa quoties 
periculum sit in mora et matrimonium nequeat differri 
usque dum dispensatio a Sancta Sede obtineatur super 
impedimentis maioris gradus infra recensitis. 

a) Consanguinitatis in secundo aut in tcrtio cum primo 
mixtis, dummodo nullum exinde scandalum aut admira- 
tio exoriatur; 

b) consanguinitatis in secundo lineae collateralis gradu; 

c) afhnitatis in primo lineae collateralis gradu aequali 
vel mix to cum secundo; 

d) publicae honestatis in primo gradu, dummodo nul¬ 
lum subsit dubium quod coniux esse possit proles ab 
altero contrahentium genita. 

3. 0 Dispensandi tempore et in actu Sacrae Pastoralis 
Visitationis aut Sacrarum Missionum, et non ultra, super 
omnibus matrimonialibus impedimentis supra memoratis 
cum Us qui in concubinatu vivere reperiuntur. 

4. 0 Sanandi in radice matrimonia nulliter contracta ob 
aliquod ex impedimentis minoris gradus, si adsit magnum 
incommodum requirendi renovationem consensus a parte 
impedimenti inscia, dummodo consensus in utroque con¬ 
ing e perdurct et nullum adsit periculum divortii, certioriata 
parte impedimenti conscia de effectu sanationis et debita 
facta adnotatione in libro matrimoniorum. 

In usu faculatum de quibus in praesenti folio prae 
oculis habeantur quae in can. 1048 et 1054 statuta re¬ 
periuntur. 

Curet Ordinarius in singulis praefatis concedendis 
dispensationibus, ut nupturientes qui pares solvendo 
inveniantur acquam oblationem iuxta vires persolvant in 


BY THE S. C. OF THE SACRAMENTS 525 

obsequiunt Sanctae Sedis. Idem autem Ordinarins in fine 
cuiuslibet anni referat ad hanc S. Congregationem de 
numero et specie dispensationum quas vigore praesentis 
indulti Ipse fuerit elargitus et summan oblationum trans- 
mittat, salvo praescripto eanonis 1056. 

Pro facilitate dispensandi super impedimento mixtae 
religionis et disparitatis cultus sive singillatim sumptis 
sive cum aliis impedimentis concurrentibus, recurrendum 
ad Sanctum Ofdcium. 

Praesentibus duraturis usque ad annum quo ab 
Ordinario fieri debet proximo Relatio dioecesana, quo- 
usque nempe occasione praefatae relationis prorogationem 
harum facultatum petierit et obtinuerit. 

The S. C. of the Sacraments, by virtue of the power 
given to it by His Holiness Pope Pius X, grants the 
faculties mentioned below to the Ordinary N., which he 
may make use of himself or through other ecclesiastical 
persons to be especially appointed for that purpose, with 
regard to marriages either to be contracted, or already 
invalidly contracted, in favor of his own subjects, 
wherever they be, and also in favor of all such as actually 
live in his diocese, mention to be made in each and every 
case of the Apostolic delegation, according to can. 1057. 

Here subdelegation is expressly mentioned, but with 
the addition : “ad hoc specialiter deputandas,” which means 
that these faculties should be subdelegated to other 
ecclesiastical persons with some circumspection and selec¬ 
tion, and not indiscriminately to all the pastors or priests 
of the diocese. To those properly selected they may 
be subdelegated habitually (can. 199, § 2). 

1. To dispense for a just and reasonable cause from 
all minor marriage impediments. These, according to 
can. 1042, are: 

a) Crime with adultery and promise of marriage; 


526 


FACULTIES 


b) Consanguinity in the third degree of the collateral 
line ; 

c) Affinity in the second degree of the collateral line; 

d) Public honesty in the second degree; 

e) Spiritual relationship. 

Besides, he may dispense: (a) from the simple vow of 
virginity; (b) from the simple vow of perfect chastity; 
(c) from the simple vow not to marry; (d) from the 
simple vow to receive sacred orders; (e) from the simple 
vow to embrace the religious state. The added clause 
“ad cffectum tantnm matrimonium contrahendi,” is 
essential, but only concerns the vows, not the five minor 
impediments; otherwise it would have found its place 
immediately after “ex causa.” 

2. To dispense: 

a) from consanguinity in the second or third degree 
mixed with the first, “provided no scandal or surprise be 
caused thereby.” This “dummodo” savors of an in¬ 
validating clause, but neither content nor the subject as 
such would really constitute such a clause. If it were 
invalidating, the faculty would almost be illusory, be¬ 
cause surprise is seldom avoidable; and who is to be the 
judge? 

b) From consanguinity in the second degree of the 
collateral line. Here the second degree has no admixture 
of the first; 

c) from affinity in the first degree of the collateral 
line, either equal to, or mixed with, the second degree; 

d) from public honesty in the first degree, provided 
there be no doubt that one party is not the offspring of 
the other; this is an essential condition. 

At the beginning of this paragraph 2 there is a clause 
embracing the impediments enumerated; viz., that the dis¬ 
pensation is to be granted “for a grave and urgent reason 


BY THE S. C. OF THE SACRAMENTS 527 

whenever there is danger in delay and the prospective 
marriage cannot be deferred until a dispensation from 
the Holy See can be obtained.” For an explanation of 
this clause see canons 81 and 84. 

3. To dispense persons living in concubinage during, 
and in the act of a pastoral visit or during a sacred 
mission, but not otherwise, from all the above-mentioned 
matrimonial impediments. The “pastoral visit” is the one 
mentioned in can. 343, but the phrase may, we believe, 
be extended to other diocesan visits, provided they bear 
the character of pastoral, and are not merely friendly 
calls. The missions are those named in can. 1349. The 
text does not specifically require that the Ordinary give 
the mission himself, but his presence is demanded by 
reason of the clause “in actu” As to the meaning of 
concubinage, see can. 1078. 

4. To revalidate (sanandi in radice) marriages invalidly 
contracted on account of one of the minor impediments, 
provided it would be very inconvenient to obtain a 
renewal of consent from the party who is ignorant of 
the impediment, and provided also that the former con¬ 
sent continues and there is no danger of a divorce. The 
party aware of the impediment must be told of the effect 
of this sanatio, and a note added in the marriage 
register (see can. 1138 ff.). 

After the enumeration of faculties the Ordinaries are 
exhorted to see to it that the parties for whose benefit 
these dispensations are granted, should be told to make an 
equitable offering, if they are able to do so, as a token 
of reverence to the Holy See. 15 The Ordinary shall 
also report annually to this S. Congregation the number 
and kind of dispensations which he has granted by virtue 

15 See our Commentary, Vol. V, 130 ff. 


FACULTIES 


5^8 

of these faculties and forward the money received for 
them, with due regard to can. 1056. 

C. Faculties Granted by the S. Concilii 

i.° Reducendi per quinquennium, ob diminutionem 
redituum perpetua missarum onera ad rationem ele- 
emosynae in dioecesi legitime vigentis, quoties nemo sit 
qui de iure teneatur et utiliter cogi queat ad eleemosynae 
augmentum, et sub lege ut de missarum ita reductarum 
satisfactione a singulis celebrantibus Curia dioecesana 
quovis anno legitime doceatur. 

2° Transferendi per quinquennium intra fines dioecesis 
onera missarum in dies, ecclesias vel altaria alia a funda- 
tione statuta, dummodo adsit vera necessitas nec divinus 
cultus idcirco minuatur aut populi commoditati praeiudi- 
cium inferatur, exceptis tamen legatis quae in certis locis 
adimpleri facile possunt per eleemosynae augmentum, et 
cauto ut de translatarum missarum satisfactione quovis 
anno Curia dioecesana a singulis celebrantibus legitime 
doceatur. 

3. 0 Transferendi per quinquennium exuberantia mis¬ 
sarum onera etiam extra dioecesim, cauto tamen ut quam 
maximus missarum numerus intra fines dioecesis celebretur 
atque adamussim serventur praescripta Codicis iuris 
canonici circa cautelas adhibendas in missis committendis. 

4. 0 Permittendi ut privata Matutini cum Laudibus 
recitatio anticipari possit ab hora prima post meridiem, 
quoties adsit rationabilis causa. 

5. 0 Permittendi alienationem bonorum ecclesiasticorum 
usque ad summam capitalem 10,000 dollariorum pro 
Statibus Americae Foederatis et ditione Canadensi; et 
15,000 pesos pro America Meridionali aliisque regionibus; 
hoc vero quatenus necessitas adsit et tempus non suppetat 


BY THE S. C. CONCILII 


529 

recurrendi ad S. Scdem, edocta, statirn ac effecta fuerit 
alienatio eadem, S. Sedc de alienatione ita peracta. 

1. To grant, for a space of five years, a reduction of 
perpetual masses, if the revenues have been diminished 
and no one can legally and conveniently be compelled to 
increase the original stipend. The reduction is to be 
made in proportion to the amount of stipends in vogue in 
the respective diocese. The priests benefited by the 
reduction must notify the diocesan chancery annually of 
the fulfillment of the reduced obligations (see can. 1550). 

2. To grant, for a space of five years, a transfer of 
masses which, according to the foundation-charter, should 
be said on certain days or altars, or in specified churches, 
within the same diocese, provided there be a real need 
for such transfer, and provided that divine worship suffer 
no curtailment and the people experience no inconvenience 
therefrom. From this grant are excluded foundation- 
masses which can easily be said by increasing the stipend. 
The priests thus benefited, etc. (can. 833, 834). 

3. To transfer, for a space of five years, supranumerary 
masses to another diocese, provided, however, that the 
greater number be said in the diocese and, for the rest, 
the prescriptions of the Code be observed. The Code 
has no prohibitive clause as to sending Masses outside the 
diocese nor any instructions as to where they must be 
said; but merely lays down certain precautions (see 
can. 837-840). 

4. To grant permission to begin “anticipating” Matins 
and Lauds at one o’clock p. m. when there is a reasonable 
cause. This faculty may be inserted in the diocesan 
faculties. 

5. To allow alienation of church property to the amount 
of $10,000 in the U. S. and Canada and 15,000 pesos in 
South America. The Holy See must, however, be in- 




530 


FACULTIES 


formed of the alienation made, which, besides, is per¬ 
missible only in case of necessity and when no time is left 
for recourse (see can. 534 and 1532). In such a case 
can. 81 may be applied. 

D. Faculties Granted by the S. C. Religiosorum 

i.° Facultas dispensandi super ill e git imitate natalium 
ad ingrediendum in Religioncm, quatenus a Constitu- 
tionibus Instituti requiratur, dummodo non agatur de prole 
sacrilego commercio orta, ad petitionem Superiorum, et 
dispensati ad munia maiora ne eligantur iuxta praescrip- 
tum Can. 504. 

2. 0 Facultas permittendi celebrationem trium Missarum 
de ritu in node Nativitatis D.N.I.C. in ecclesiis reli¬ 
giosorum non comprehensis in can. 821, 3, cum facultate 
pro adstantibus ad S. Synaxim accedendi, ita tamen ut 
didae tres Missae ab uno codemque Sacerdote cele- 
brentur. 

3. 0 Facultas dispensandi super aetatis excessu pro 
admittendis ad habitum religiosum, quatenus a Constitu- 
tionibus Instituti requiratur, audita in singulis casibus 
Superiorissa Generali vel Provinciali atque praevio eorum 
consensu et respedivi Consilii, dummodo postulantes 
aetatem 40 annorum ne excesserint et polleant ceteris 
qualitatibus requisites. 

4. 0 Facultas dispensandi super defectu aetatis ca- 
nonicae ad S. Ordinem Presbyteratus, non ultra . . . men¬ 
ses, etiam pro Religiosis exemptis, dummodo a suis 
Superioribus litter as dimissoriales acceperint et quatenus 
ordinandi ceteras qualitates habcant a SS. Canonibus re¬ 
quisites et praesertim curriculum theologicum expleverint 
ad norman Canonis p/6, § 2 Codicis I. C. 

5. 0 Facultas dispensandi super dotis defectu cum 


BY THE S. C. RELIGIOSORUM 


53i 


Monialibus et Sororibus in toto vel in parte, dummodo 
status occonomicus Instituti detrimentum ne patiatur, et 
postulantcs talibus sint praeditae qualitatibus, ut eas 
magnae utihtati Instituto fore certa spes habeatur. 

6.° Facultas confirmandi Confessarium ad quartum et 
quintum triennium, dummodo maioris partis Religiosarum, 
convocatis etiam iis, quae in aliis negotiis ius non habent 
fcrcndi swffragium concensus capitularitcr ac per seer eta 
suffragia pracstandus, prius accedat, proviso pro dis- 
sentientibus, si quae sint ac velint. 

y.° Facultas permittendi celebrationem SS. Missae 
Sacrificium Fcria V in Coena Domini , facta licentia 
personis habitualiter in communitate commorantibus scse 
reficiendi S. Synaxi, etiam ad adimplcndum praeceptum 
paschale. 

8.° Facultas permittendi Monialibus descensum in 
Ecclcsia ut ipsae earn maiori s oiler tia mundare et dec or are 
possint, exeuntibus prius ab Ecclesia extraneis omnibus, 
non exceptis ipsis Confessario et Monasterio inservien- 
tibus et extra claustra degentibus, portae illius claudantur 
et clavos Superiorissac tradantur, Moniales vero semper 
binae sint et porta per quam aditus interior ad Ecclesiam 
patet, duplici clavi claudatur, quorum una a Superiorissa, 
altera a Sanctimoniali ab Ordinario deputanda custodiatur 
ct non aperiatur nisi in casibus enunciatis et cum prae- 
scriptis cautelis. 

9. 0 Facultas permittendi Monialibus egressum e claustris 
urgente casu operationis chirurgicae subeundae, quamvis 
non secumferat periculum mortis imminentis aut gravis- 
simi mali, per tempus stride necessarium, praescriptis 
debitis cautelis. 

1. To dispense from illegitimacy, if this condition is 
inserted as invalidating religious profession in the respec¬ 
tive Constitutions; for can. 542 contains nothing to this 


532 


FACULTIES 


effect. Sacrilegious illegitimacy, however, is not thereby 
dispensed from, nor can an illegitimate person otherwise 
dispensed in virtue of this faculty, be admitted to higher 
offices (can. 504). 

2. To grant permission for celebrating three Masses on 
Christmas night, as permitted by the rubrics, in the 
churches of religious not comprised by can. 821, § 3, 
provided the same priest says all three Masses (see our 
Commentary, Vol. IV, p. 165 ff.). 

3. To grant a dispensation for those who, according 
to the Constitutions of the respective institutes, could not 
otherwise be received by reason of advanced age. The 
Ordinary must, however, previously obtain the consent of 
the superior, either general or provincial, and of his 
counsellors. Besides, the postulants should not be older 
than forty years and possess the other necessary qualities 
(see can. 542). 

4. To dispense from lack of the required age for the 
priesthood, but only for a certain number of months. 
This number is not explicitly stated; but since the term 
“month” is used, it is implied that it should be less than 
a year. This faculty may also be applied in favor of 
exempt religious, provided they have obtained dimissorial 
letters from their superiors. In all cases the studies 
required by can. 976, § 2 must have been fully completed, 
unless, of course, the candidate has received a general 
privilege to the contrary, as the Benedictines have. 

5. To dispense nuns and Sisters from the defect of 
dowry, either entirely or in part, provided the institute 
does not suffer thereby financially and the candidates are 
commendable for reasons of great usefulness. Concern¬ 
ing the dowry, see can. 547, which permits Ordinaries to 
dispense from it in diocesan institutes. This faculty, 


BY THE S. C. RELIGIOSORUM 


533 

therefore, concerns only exempt and papal organizations 
whose Constitutions demand a dowry. 

6. To confirm the ordinary confessor for a fourth and 
even a fifth term, provided the majority of the religious 
by secret ballot vote, in favor of his confirmation in 
office; to this ballot must be admitted, also those who 
would otherwise be excluded from voting, and provision 
must be made for those who object to the confirmation if 
they demand it (see can. 526). 

7. To permit the celebration of Mass on Holy Thurs¬ 
day, which permission also allows persons habitually 
living in the community (see can. 514) to receive their 
Easter Communion there (see can. 820 and 859). 

8. To allow cloistered nuns to go to a church adjoining 
their convent, outside the enclosure, for the purpose of 
cleaning and adorning it. There must, however, be no 
stranger in the church, not even the confessor, nor any 
domestic servant; the door must be locked and the keys 
handed to the superioress; the gate leading to the interior 
entrance must be locked with two keys, one of which 
must be kept by the superioress and the other by a nun 
appointed by the Ordinary; this interior gate may only 
be opened on the above-named occasions and after taking 
due precautions, one of which is that two nuns must 
always go together. 

9. To allow a nun to leave the enclosure for the purpose 
of a surgical operation, even if there be no immediate 
danger of death or of serious consequences; but this per¬ 
mission may be granted only for the time absolutely 
necessary and with due precautions. The last mentioned 
two faculties are hardly required in our country, 
except where there are Visitation nuns with papal 
enclosure. 



534 


FACULTIES 


E. Faculties Granted by the S. Congregatio Rituum 

i.° Deputandi sacerdotes, si fieri potest, in aliqua 

ecclesiastica dignitate constitutos ad altaria fixa et por- 
tatilia consecranda, servato ritu et forma P ontihcalis 
Romani; et quoad altaria portatilia etiam adhibita sola 
rituali formula breviori approbata. 

2. 0 Deputandi sacerdotes, si fieri potest, in aliqua 

ecclesiastica dignitate constitutos ad altaria fixa et por¬ 
tatilia execrata consecranda, adhibita breviori formula B 
pro casibus can. 1200, § 2, Cod. I. C.; dum in casu can. 
1200, § 1, iam indulta fuit per ipsum canonem facultas et 
adhibenda est formula A. 

3. 0 Deputandi sacerdotes, si fieri potest, in aliqua 

ecclesiastica dignitate constitutos, ad consecrandos calices 
et patenas; servato ritu et forma Pontificalis Romani. 

4. 0 Quando in Missa Hebdomadae Maioris dicitur 
passio, pro sacerdotibus qui binas missas, e speciali In- 
dulto Apostolico obtinendo celebrant, legendi in una 
Missa tantum ex Passione postreman partem (Altera 
autem die etc.) praemissis; Munda cor meum, etc.; 

Sequentia sancti evangelii secundum (Mathaeum). 

5. 0 Benedicendi nuptias extra Missam vel recitandi 
preces super coniugcs, iuxta formulas approbatas, cum 
potestate subdelegandi. 

6.° Benedicendi et imponendi quinque scapularia sub 
unica formula, cum potestate subdelegandi. 

y.° Benedicendi et imponendi quinque scapularia sub 
unica formula absque recursu ad Ordinarios seu Con - 
gregationes religiosas competentes, et sine onere inscrip- 
tionis in casibus magni concursus, tempore exercitiorum 
et missionum spiritualium, cum potestata subdelegandi. 

8.° Benedicendi sacra olea cum minori numero sacro- 


BY THE S. C. RITUUM 


535 


rum ministrorum, Feria V. in Coena Domini (pro 
Episcopo celebrante). 

9. 0 Permittendi thurificationem in Missa cantata absque 
sacris ministris. 

io.° Permittendi usum Memorialis Rituum Benedicti 
PP. XIII in Ecclesiis seu Orstoriis publicis et semi- 
publicis (non parochialibus vel quasi parochialibus) in 
functionibus Tridui Maioris Hebdomadae et in Benedic- 
tione Cinerum, Candelarum et Palmarum. 

n.° Benedicendi obiecta pietatis, signo crucis, pro 
Episcopo seu Ordinario, servatis ritibus ab Ecclesia 
praescriptis. Occasione tamen visitationis past oralis et 
quando multi pctunt, et plura ac varia exhibent eiusmodi 
obiecta benedicenda, saepe etiam cum diversis formulis, 
hiscc in casibus permittitur unica et brevis formula ab 
Episcopo seu Ordinario recitanda, dum facit signum crucis 
super obiecta nempe: “Benedicat haec omnia Deus Pater, 
Filius et Spiritus Sanctus, Amen.” 

12. 0 Celebrandi Missam de Requiem lee tarn semel in 
hebdomada ab Episcopo seu Ordinario in proprio oratorio; 
dummodo non occurrat festum ritus duplicis primae aut 
secundae classis, Dominica aut festum dc praecepto etiam 
suppressum, necnon Octava privilegiata, Feria Quadra- 
gesimae, Quatuor Temporum, Rogationum, Vigilia ant 
Feria in qua anticipanda vel primo reponenda est Missa 
Dominicae, servatis de cetero rubricis. 

Taxae exquiri solitae pro hisce indultis—quasque 
Ordinarius exiget, nisi pro casuum diversitate sint 
moderandae aut dispensandae ob paupertatem oratorum 
aliasve iustas causas—sunt quae sequuntur, etc. Quas 
tax as etc., as above under I. 

1. To appoint priests for the purpose of Consecrating 
fixed and portable altars. Fixed altars must be con- 


536 


FACULTIES 


secrated according to the Pontificale, while portable altars 
may be consecrated according to the shorter formula in 
the Rituale. 16 The Ordinaries should, if possible, select 
for this appointment priests who enjoy an ecclesiastical 
dignity, such as abbots, monsignori, provincials, or, in 
general, religious superiors with jurisdiction. 17 This 
latter accidental condition is attached also to faculty 

2. viz.: to reconcile desecrated altars, either fixed or 
portable. If the desecration was caused by a consider¬ 
able fracture, or by the removal of the relics, or by a 
fracture or removal of the sepulchre, the shorter formula 
B may be used. If the table or mensa was severed from 
its support, formula A must be employed; though in this 
latter case no faculty is required, since the Code (can. 
1200, § i) grants the power. 

3. To appoint priests, if possible from among the 
dignitaries mentioned above, for the purpose of con¬ 
secrating chalices and patens. The formula to be used 
is that of the Pontificale Romanum. Note that these 
three faculties are not intended for the clergy in general 
and should not, therefore, be inserted in the usual diocesan 
faculties. The term “deputandi” indicates a special grant. 

4. To allow those priests who, by virtue of a special 
Apostolic indult, are entitled to say two Masses, to recite 
the Passion, when it occurs during Holy Week, in one 
Mass only. The Mass without the Passion is said thus: 
After the Tract the “Munda cor meunt,” etc., then the 
“Sequcntia sancti evangelii secundum Mathaeum,” then 
the “Altera autem die” etc. The faculty speaks of a 
special indult to he obtained. But can. 806, § 2 grants 
the Ordinaries power to permit bination, hence the special 
indult must refer to the other three days of Holy Week. 

16 See the Formularies in the Appendix to our Pastor, p. 311 ff. 

17 See above, p. 319 f. 


BY THE S. C. RITUUM 


537 


5. To bless marriages outside of Mass, or to recite the 
blessing over the parties according to the approved 
formulas. This as well as nn. 6 and 7 may be sub¬ 
delegated. 

6. To bless and impose the five scapulars under one 
form. 

7. To bless and impose the five scapulars under one 
form without recourse to the Ordinary or to the religious 
Congregations from which permission should be obtained, 
and also without the duty of entering the names of those 
enrolled. But this faculty can only be made use of in 
case of a large concourse, 18 at retreats, missions, etc. 

8. To bless the Holy Oils on Maundy Thursday with a 
smaller number of assistants than is required by the 
Pontificale; this faculty is for bishops only. 

9. To allow incensation at High Masses without sacred 
ministers. This faculty was already granted to many of 
our dioceses by a decree of the S. C. Rit., in 1897. 

10. To permit the use of the Memoriale of Benedict 
XIII in non-parochial or quasi-parochial churches, or 
public and semi-public oratories, at Holy Week services 
and the blessing of ashes, candles, and palms. 

11. For the Bishop or Ordinary to bless devotional 
articles with the sign of the cross, but with due observance 
of the prescribed rites. On the occasion of the pastoral 
visit, however, and when there is a great demand and 
many objects are offered for blessing, which would require 
various formulae, the Bishop or Ordinary may simply 
make the sign of the cross and say: u Benedicat haec 
omnia Deus Pater, Filius et Spiritus Sanctus, Amen.” 

We may be permitted to add that the majority of our 

18 A magnus concursus may be assumed if from 10 to 15 
persons are to be enrolled; thus the term was explained in a 
letter that accompanied a rescript to the same effect. 


538 


FACULTIES 


priests not unreasonably expected a little more for them¬ 
selves as regards the blessing of devotional articles. 

12. To celebrate a low requiem Mass once a week in 
his (the Bishop’s or Ordinary’s) chapel—provided there 
occur no first or second class feast, no Sunday or holy- 
day (though suppressed) of obligation, no privileged 
octave, no Feria of Lent, no Ember Day, no Rogation 
Day, no Vigil or Feria on which the Sunday Mass must 
be either anticipated or postponed. The only suppressed 
feast of obligation is St. Sylvester’s, Dec. 31; the 
privileged octaves are Easter and Pentecost (primi 
ordinis), Corpus Christi and Epiphany (secundi ordinis), 
Christmas and Ascension (tertii ordinis). 

As to taxes, enough was said above, but the S. Con¬ 
gregation uses the Italian lira as its standard, and charges 
Ordinaries to remit the sum required in the same way as 
the Holy Office and under the same clauses. 

F. Faculties Granted by the S. Poenitentiaria 

i.° Absolvendi quoscumque poenitentes (exceptis 
haereticis haeresim inter fideles e pro posit o disseminan - 
tibus a quibusvis censuris et poenis ecclesiasticis ob 
haereses tam nemine audiente vel advertente quam coram 
aliis externatas incursis, postquam tamen poenitens 
magistros ex prof ess o hacreticales, si quos noverit, ac 
personas ecclesiastic as et religiosas, si quas hac in re 
complices habuerit, prout de iure dcnunciaverit; et 
quatcnus ob iustas causas huiusmodi dcnunciato ante 
absolutionem peragi ncqueat, facta ab eo seria promissione 
denunciationem ipsam peragendi cum primurn et quo 
meliori modo fieri poterit, et postquam in singulis casibus 
haereses coram absolvente secreto abiuraverit; iniuncta 
pro modo excessuum gravi poenitentia salutari cum 


BY THE S. POENITENTIARIA 


539 


frequentia sacramentorum, et obligatione se retractandi 
apud personas coram quibus haereses manifestavit, atque 
illata scandala reparandi. 

2. 0 Absolvendi a censuris et poenis ecclesiasticis eos 
qui libros apostatarum haereticorum aut schismatic orum, 
apostasiam, haeresim aut schisma propugnantes, aliosve 
per Apostolicas Litter as nominatim prohibit os defenderint 
aut scienter sine debita licentia legerint vel retinuerint; 
iniuncta congrua poenitentia salutari ac drma obligatione 
supradictos libros, quantum fieri potent, ante absolu- 
tionem, dcstruendi vel Ordinario aut confessario tradendi. 

3. 0 Absolvendi a censuris eos qui impediverint directe 
vel indirecte exercitium iurisdictionis ecclesiasticae sive 
interni sive externi fori, ad hoc recurrentes ad quamlibet 
laicalem potestatem. 

4. 0 Absolvendi a censuris et a poenis ecclesiasticis 
circa duellum statutis, in casibus dumtaxat ad forum 
externum non deductis; iniuncta gravx poenitentia 
salutari, et aliis iniunctis, quae fuerint de iure iniungenda. 

5. 0 Absolvendi a censuris et poenis ecclesiasticis eos 
qui nomen dederint sectae massonicae; aliisque eiusdem 
generis associationibus, quae contra Ecclesiam vel legitimas 
civiles potestates machinantur; ita tamen ut a respcctiva 
secta vel associatione omnino se separent eamque abiurent, 
denuncient, iuxta can. 2336, § personas ecclesiastic as 
et religiosas, si quas eidem adseriptas noverint; libros, 
manuscripta ac signa eamdem transmittenda aut saltern, 
si iustae gravesque causae id postulent, destruenda; 
iniuncta pro modo culparum gravi poenitentia salutari 
cum frequentatione sacramentalis confessionis et obliga¬ 
tione illata scandala reparandi. 

6.° Absolvendi a censuris et poenis ecclesiasticis eos 
qui clausuram Regularium utriusque sexus sine legitima 
licentia ingressi fuerint, necnon qui eos introduxerint vel 


540 


FACULTIES 


admiserint; dummodo tamen id factum non fuerit ad 
finem utcumque graviter criminosum, etiam effectu non 
secuto, nec ad externum forum deductum; congrua pro 
modo culpae poenitentia salutari iniuncta. 

y.° Dispensandi ad petendum debitum coniugale cum 
transgressore voti castitatis perfe.ctae et perpetuae, 
privatim post completum XVIII aetatis annum emissi, 
qui matrimonium cum dicto voto contraxerit, huiusmodi 
poenitentem monendo, ipsum ad idem votum servandun 
teneri tarn extra licitum matrimonii usum quam si coniugi 
supervixerit. 

8 .° Dispensandi super occulto criminis impedimento, 
dummodo sit absque ulla machinatione, et agatur de 
matrimonio iam contracto; monitis putatis coniugibus de 
necessaria consensus secreta renovatione, ac iniuncta 
gravi et diuturna poenitentia salutari. 

Item dispensandi super eodem occulto impedimento, 
dummodo pariter sit absque ulla machinatione, etiam in 
matrimoniis contrahendis; iniuncta gravi et diuturna 
poenitentia salutari. 

i. To absolve penitents from censures and penalties 
incurred on account of heresy, whether witnessed by by¬ 
standers or not. The conditions for licit absolution are: 

(a) that the penitent denounce the professional teachers 
of heresy if he knows them, as well as ecclesiastical 
persons and religious who were accomplices in the crime; 

(b) that the penitent, in case he can not for a just reason 
make the required denunciation before receiving absolu¬ 
tion, seriously promise to do so as soon as possible and 
as well as he can; (c) that the penitent, in each individual 
case, secretly abjure his heresy in the presence of the one 
who absolves him; (d) that the confessor impose a whole¬ 
some and proportionate penance, together with frequent 


BY THE S. POENITENTIARIA 


54i 


reception of the Sacraments and the obligation of retract¬ 
ing the heresy uttered and repairing the scandal given to 
other persons (see can. 2314). This faculty excludes 
those who purposely propagate heresy among the faithful. 

2. To absolve from censures and ecclesiastical penalties 
those who have defended or knowingly and without the 
necessary permission read or retained books of apostates, 
heretics, or schismatics which defend apostasy, heresy, or 
schism, or other books nominally forbidden by Apostolic 
letter (see can. 2318). The penitent must be given a 
wholesome penance and is obliged to destroy said books 
or to deliver them to the Ordinary or confessor, if 
possible, before he obtains absolution. 

3. To absolve from censure those who have either 
directly or indirectly impeded the exercise of ecclesiastical 
jurisdiction by recourse to the civil power (see can. 2334). 

4. To absolve from censures and ecclesiastical penalties 
enacted against duelling in cases which have not yet been 
brought before the external forum. The penitent must 
be given a wholesome penance and told to comply with 
other obligations imposed on him with a view to repair 
the damage caused. (Can. 2351). 

5. To absolve from censures and ecclesiastical penalties 
Freemasons and members of similar associations which 
plot against Church or State. The conditions required of 
these penitents are: (a) that they sever their connection 
with said sect or association and abjure it; (b) that they 
denounce ecclesiastics or religious who belong to such a 
sect or association and of whom they know that they are 
members; (c) that they deliver up books, manuscripts, 
and emblems, or at least, if just and grave reasons demand 
it, destroy them (see can. 2335). 

The confessor must impose a wholesome penance 


542 


FACULTIES 


proportionate to the guilt, frequent reception of the 
Sacrament of Penance, and stress the obligation of re¬ 
pairing the scandal given. 

6. To absolve from censures and ecclesiastical penal¬ 
ties those who have, without proper permission, entered 
the enclosure of regulars of either sex, and to absolve 
those who have unlawfully admitted or introduced per¬ 
sons forbidden into said enclosure. The absolution 
is valid only in case the violation of the enclosure, though 
committed without evil intent, has not yet been brought 
before the external forum. The confessor must impose 
a penance proportionate to the gravity of the guilt. (Can. 

2343)- 

7. To dispense those who, notwithstanding the private 
vow of perfect and perpetual chastity taken after the 
completed 18th year of age (see can. 1309), have con¬ 
tracted marriage, for the purpose of demanding the 
debitum coniugale. The penitent must be told that he or 
she is obliged to observe the vow outside the lawful use 
of marriage and in case he or she should survive the 
other party. 

8. To dispense from the occult impediment of crime, 
provided there was no machinatio (conjugicide) on either 
side, and provided the marriage had already been con¬ 
tracted. The supposed consorts must be told of the 
necessity of secretly renewing their consent, and be given 
a grave and lasting penance. Also to dispense from the 
impediment of crime under the condition stated when a 
marriage is to be contracted, with a grave and lasting 
wholesome penance (see can. 1075 and 1135). 


INDEX 


Abbates nullius IX; rights 78 
ff.; ceconomus 157; indul¬ 
gences 248 

Abbots, X; pontificals 37 ff.; 
86; precedence 41 f.; ordina¬ 
tion 85; synods 95; as to 
confessions 242 f.; ordina¬ 
tion 254 f. 

Absolutio complicis 491 

Absolution, from penalties 
474 

ff.; from censures 477 f. 

Accounts 397 f. 

Acts, legal ecclesiastical 484 

Administration, of Churches 
320 f.; of property 394 ff. 

Administrative powers 49 ff. 

Administrators, Apostolic 73 
ff.; Vic. Capitular 156 ff.; of 
Churches 310; of Church 
property 394 ff. 

Admonitions 451; 465 

Age, for resignation 374; see 
Qualities 

Alienation 399 ff.; 406 

Altar, stone 231; kinds and 
make 315 f.; consecration 
352 

Anniversary of dedication 305 f. 

Apostates, absolution 491 f. 

Apostle 1 

Appeal 417 f.; 441 f.; 489 

Appointments 127; 130; of con- 
suitors 148 f.; of administra¬ 
tor 157 f.; of deans 170; of 
pastors 171 f. 

Archives, diocesan 139 ff. 


Arctati 162 

Assistance, at marriage 290 f.; 
valid, licit 291 

Assistants 181 ff.; 290 f.; as to 
taxes 389 

Audito capitulo 147 

Ausus fuerit 483 

Authenticity, of relics 333 

Banns 269 

Baptism 187; 216 ff. 

Beatification trials 445 ff. 

Begging 186; 382 f. 

Bells 306 f. 

Benefice 358 ff. 

Beneficiaries 371 ff. 

Bestowal, of benefices 370 

Bination 226 ff. 

Birth, legitimate 9 

Bishops, as to Confirmation 220 
f. 

Blessings reserved 299; of s. 
places 301 f. 

Books, parish 180; forbidden 
204 f.; 352; censorship of 

349 ff- . 

Boundaries of diocese 53 f. 

Burial, of religious 191; 205; 
321; ecclesiastical 320 ff. 

Candidates' list 19 f. 

Canonicus theologus 153 f. 

Canonization, trials 445 ff. 

Cardinals, pontificals 36; pre¬ 
cedence 40; privileges 42 ff. 
indulgences 246; as to con¬ 
secration 300; as to burial 


543 


544 


INDEX 


322; as to S. Supellex 336; 
as to penalties 474 
Casus exceptus 450 
Catechetical Instructions 341 f. 
Cathedral Church 17 f.; 329; 

337; Chapter 146 f. 
Cathedraticum 385 f. 

Causae piae 233 
Censorship 192; 349 f. 

Censures 475 ff. 

Cessation, of office 128; 134; 

165 

Chancellor 136 f. 

Chapter, cathedral 146 f. 
Charismata II 
Choir-Distributions 359 
Chorepiscopi VII f.; 129 
Churches 302 ff.; as to preach¬ 
ing 345 
Clausulae 104 

Coadjutors IX; pontificals 37; 

appointment, rights 126 f. 
Coercive power 470 ff. 

Coetus 150 

Collegium Apostolorum I 
Communicatio in divinis 327 f. 
Communion, Holy 234 ff. 
Conclusions 420; 432 
Concordats 88 

Concubinarians, procedure 
against 463 f.; 502 
Concursus 173 ff. 

Confession 235 ff.; at sea 242; 
judicial 432 

Confirmation 188; 218 ff. 
Confraternities 206 f. 
Congregation of Sacraments 
276 f.; 434; 517 f. 

Conscience, marriage of 294 
Conscientia informata 466 
Consecration, of bishops XXII 
ff.; nf.; of churches 190; 
300 ff.; of altars 316 f. 
Consent, of copsultors 147; 151 

l 


Consultors, diocesan 13 f.; 57 > 
127; 144 ff.; pastors 143 f. 
Contracts 399 f. 

Contributions, special 386 f. 
Cornerstone 303 
Councils 97 ff. 

Court, diocesan 128 ff.; rules 
for trials 411 f.; of appeal 
417 f.; matrimonial 444 
Crime, for suspension 467 f.; 

definition, kinds 470 
Criminal trial 426 ff. 

Cross, pectoral 335 
Cultus, non-cultus 440 f. 
Curates 181 ff. 

Custody, of books 355 
Customs 101 f.; see Assistants 

Deans, Rural 170 f. 

Death, danger of 292; 479 f. 
Debts of old parish 367 
Decorum of Churches 310; 465 
Decree of removal 456; 459 
Dedication 303 f.; anniversary 
305 f- 

Defensor vinculi 416; 419; 437 

f.; 441 

Degradation 500 f. 

Delegation, of Judges 418 
Deposition 501 
Desecration 308 f. 

Die datae, a 105 
Dignitaries 319 f. 

Dignity 1 f. 

Dimissorials 252 f. 

Diocese, origin of 50 f.; bound¬ 
aries 53 f. 

Directors, spiritual 194 
Dismissal of religious 196 f. 
Dispensations 120 ff.; 205 ; from 
impediments 274 ff.; from 
penalties 47 
Disputations 340 
Divine institution 2 
Division, of the treatise XXVI; 


INDEX 


545 


of diocese 53 f.; of parishes 
365 ff.; of property 381 
Doctors 348 

Domus formata, non-formata 
241; religiosa 378 
Donations 401 f. 

Dress 229 

Duties 15 ff.; of pastors 178 
ff.; of religious superiors 199 
ff.; of beneficiaries 371 ff.; 
neglect of 465 

Election, of bishops, history X 

ff. 

Enclosure 196; 342 
Encomium XXIV 
Engagement 268 
Episcopus 1; proprius 251 f. 
Eucharist, Holy 188; 226 ff.; 

Worship of 329 ff. 
Examination, of religious 195 
f.; for hearing confessions 
238; for ordination 263 
Examiners 143 f.; 172; 451; 

453 ; 458; 462; 464; 465 
Excardination 166 ff. 

Exchange of benefices 377 
Excommunication 483 f. 
Executor 102 f. 

Exempt religious, rights with 
regard to 81 ff.; powers 183 
f.; non-exempt 185 f.; as to 
penalties 474 

Exemption 75 ff.; of parishes, 
180 f. 

Exploratio voluntatis 195 
Exposition 189; 332 f. 

Extreme Unction 189, 249 ff. 

Faculties, nature niff.; of 
Vicar-General 132; concern¬ 
ing religious 211 f.; impedi¬ 
ments 276 f.; for reading 
books 353 f.; of S. C. Con- 
.cilii 405 f.J 5 io ff. 


Faith, profession of 357 f. 

Fast, Eucharistic 229; days 

324 f. 

Feasts 324 f. 

Fees, funeral 323; stole 359 
First Mass 230 
Fitness, proved 7 ff. 

Forms of marriage 290 
Formula of absolution 478 
Foundations, pious 403 f. 
Fracture of altar 318 
Functions of consultors 150 ff. 

Government, of diocese 87 f. 

Holy Office 288 f.; 353 f.; 435; 
516 ff. 

Honorary rights 135; 164 
Hospitals 378 f. 

Ignorance 482 f. 

Illegitimate 286 
Images, for veneration 332 
Impediments 273 ff.; prohib¬ 
itive 288 ff. 

Imprimatur 352 
Impuberes 483 
Incardination 166 ff. 
Incorporation of parishes 
176 f. 

Indulgences, by bishops 48; 
246 ff. 

Indults iii; 281; for alienation 
400 

Industria personae 16 
Infallibility 2 
Infamia iuris 502 
Inferior parish 459 
Inquest 428 f. 

Inquisitor 429 
Insignia, pontifical 34 
Installation 370 

Institutes, religious 183; pious 
233; non-corporate 378 f.; 
accounts 398 


546 


INDEX 


Instructions, bridal 268; cat¬ 
echetical 341 f. 

Interdict 485 ; 498 f. 

Interpreter, of laws 90 f.; of 
confession 290 
Interstices 260 
Inventory 396 
Invitation to resign 453 
Irregularities 262 
Irremovable pastors 176; re¬ 
moval of 452 

Judges, for trials 413 f -5 syn¬ 
odal 414; matrimonial 436 f.; 
as to penalties 472 
Jurisdiction, origin of 4 f.; for 
confessions 235 ff.; for trials 
418 f. 

Juspatronatus XV; 57 

Kings, as to election of bishops 
XII f. 

Laws, in general 89 ff.; dis¬ 
pensation from 121 f. 

Lease 402 

Legates, pontificals 36; pre¬ 
cedence 40; rights 61 ff. 
Legislative powers 49ff.; 87 
ff. 

Legitimation 285 f. 

Libelli 351 
Liturgical laws 88 
Loss of privileges 117L; of 
consecration 307; 318 

Mandate, special 133 f. 
Marriage, in chapels of reli¬ 
gious 190; as Sacrament 
265 ff. 

Martyrs 447 

Mass for people 19ff.; 70; 179 
Mensa episcopalis 47 
Metropolitans, pontificals 36 f.; 
precedence 40; rights 57 f.; 
as to regulars 84 


Minister of Baptism 216 f.; of 
Confirmation 220 f. 

Missio canonica 341 
Mixed marriage 288 ff. 

Neglect of pastoral duties 465 
Nomination of bishops 3 
Notorious 470 

Non-Catholic as to Catholic 
service 327 f. 

Notabilis pars 228 

Notaries 136 ff.; for trials 416 

Oath, for ordination 251; reli¬ 
gious act 339 f.; antimodern¬ 
ist 358; for administrators 
396 

Obreptio 107 
Oeconomus 157 
Offerings 311; 359 
Officialis 13; 128; 412; 415 f. 
Oratories 313 ff. 

Orders, Holy 189; 203; 250 ff. 
Ordinary power 2 
Ordination, by abbots 85; of 
clerics 252 ff.; 263 f.; 

Origin, of episcopal jurisdiction 
4 f.; of diocese 50 f. 
Orphanages 378 

Pallium 58 ff. 

Parishes, incorporated 176; 
status of 359; division of 365 
f.; inferior 459 

Pastors, as to synods 94; 171 
ff.; rights and duties 371 
ff.; removal of 452 ff.; 
non-resident 459; neglectful 

465 

Pastors-Consultors 143 f.; 451; 

456; 460 
Patriarchs 55 f. 

Pauline Privilege 295 ff. 
Penalties, in gefl^ral 471 ff.; for 


INDEX 


religious 192; vindictive 489; 
arbitrary 505 

Penance, Sacrament 235 ff.; 

penalty 489 
Pensions 369; 391 
People, share in election XII 
Peregrini 90; 249 
Per modum actus 232; 324 
Place, .sacred, of religious 190; 
consecration of 300 f.; for 
baptism 217; for confirmation 
223; for Mass 230 f.; for or¬ 
dination 264; for marriage 
293 f. 

Plaintiff 438 f. 

Pleno—semipleno iure 176 f.; 

division in 364 
Poenitentiaria, S. 282 f. 
Poenitentiarius 153 f. 

Pollutio ecclesiae 308 f. 

Ponens 420 

Pontificals 33 ff.; 85 f.; 230 
Possession, taking of diocese 
12 f. 

Postulator 450 

Powers, legislative-administra¬ 
tive 49 ff.; 87 ff.; ordinary 3; 
of consultors 150 ff; of ad¬ 
ministrator 161 f.; of reli¬ 
gious superiors 202 f.; coer¬ 
cive 470 ff. 

Praesumpserit 482 f. 

Preaching 191; 342 ff. 
Precedence 39 ff.; 135; 164 
Precept 464; 471 
Prefects Apostolic 65 ff. 

Prelates nullius IX ; 78 ff. 
Preparation for orders 258 f. 
Presbyteri II f. 

Priests’ sick fund 390 f. 
Privation, of office 502; of ac¬ 
tive and passive voice 504 
Privileges 15 f.; 33 ff.; per- 

sonal 42 ff.; and Code 88; 
nature no 


547 

Privilegium fidei 295 ff.; fori 
494 ; canonis 494 
Procedure, criminal 427 f.; 
matrimonial 443 f.; in beatifi¬ 
cation 447 f.; in removal 455 
f.; against non-resident 
clerics 461 ff.; in suspending 
487 f. 

Processions 191 ; 334 f. 
Processus Informativus 7 ff.; 
447 f. 

Profession of faith 357 f. 
Prohibition of books 352 
Promotor fidei 447 f.; iustitiae 
416; 419; 427 

Proof of consecration 302; in 
marriage-trials 439! 
Property 380 ff.; administration 
of, 394 ff. 

Protonotaries apostolic 71; 74; 
136 

Proxy, marriage by 290 
Public 470 

Qualities XXIV; iff.; 8ff.; of 
administrator 160; of reli¬ 
gious superiors 199 f. 
Quinquennia 25 

Reasons, for dispensation 123; 
canonical 283 ff.; for division 
365; for removal 452 
Recipients of Confirmation 222 
f. 

Recommendation XVIII 
Reconciliation of Churches 309 

fi; 32 

Recording of marriages 294; 
of orders 265; of consecra¬ 
tion 302 

Recourse in division 369; as to 
removal 452; 465 ; 479 f.; 489 
Rectors 183; of seminaries 256 
Reduction of obligation 393 f.; 
405 


548 


INDEX 


Regalists io 

Regulars 75 f.; 81 ff.; indul¬ 
gences 247; ordination-title 
261; consecration 300 
Reincidentiae poena 481 
Relationship, spiritual 225 
Relatio dioecesana 23 ff. 
Relatives of bishop 395 
Relics, for consecration 317; 
for worship 333; alienation 
399 

Religious, diocesan visit 29; 31 
f.; exemption 75 ff.; powers 
as to 183 ff.; Ordinaries 198 
f.; as to confession 188; 236 
f.; as to ordination 254 f.; 
as to Divine Worship 328; as 
to preaching 342; removal of 
pastor 458; see Exempt 
Remedies, penal 489 f. 
Removable pastors 176; remov¬ 
al of, 457 f. 

Removal, of coadjutors 128; 
of Vicar-General 131; of 
consultors 153; of admin¬ 
istrator 165; of pastors 
452 ff. 

Remission of penalties 474 f. 
Rent 402 f. 

Repair of churches 313 
Report, diocesan 23 ff. 

Rescripts 102 ff. 

Res ecclesiasticae 213 ff. 
Reservation of the Bl. Sacra¬ 
ment 188; 329 

Reservation of censures 476 f.; 
of sins 242 f. 

Residence 15 ff.; 127; of pas¬ 
tors 178 f.; procedure in case 
of violation 461 

Resignation 374 ff.; invitation 
to 453 

Res iudicata 425 f. 

Restitution 373 
Restitutio in integrum 422 


Revalidation of marriage 297 
ff. 

Revenues 47; kinds of 371 ff.; 
trials for 410 

Revoking of jurisdiction 240 f. 
Rights of religious superiors 
202 ff.; of beneficiaries 371 
Ring 335 

Rite, of ordination 263 f.; of 
marriage 293 
Rooms for Mass 231 

Sacerdotes V 
Sacramentals 204; 298 ff. 
Sacraments, as to religious 187 
Sanatio in radice 279; 298; 513 
Schools 348 f. 

Science, required 9 f.; for or¬ 
dination 259 
Seal of Confession 491 
Seasons, Holy 324 f. 

Sedes impedita 154 f. 

Seminary 258; 345 ff.; tax 384 
f. 

Sentence 419 f. 

Sententiae ferendae—latae 471 
Sepulchrum, of altar 316 f. 
Simony 214 

Sins, reservation of 242 f. 
Societies religious 255 
Sponsors 188; 224 
Status, temporal 24 f. 

Stipends 233; 406 
Subdelegation of faculties 117 
Subject to penalties 473 
Subreptio 107 

Subsidium caritativum 386 f. 
Suffragan, senior 159 
Suffragium 431 
Suicide 324 

Supellex, S. 335 f-; 457 
Superiores maiores 10 
Superiors, religious 199 ff.; as 
to feast and fast 325; with 
coercive power 472 f. 


INDEX 


549 


Superstition 328 
Suppression of religious insti¬ 
tutes 197 

Suspensio, ex informata con- 
scientia 466 ff.; as censure 

485 f •. 

Suspensions, special 499 f. 

Syndicus 395 

Synods, diocesan 91 ff. 

Taxes, to be fixed 93; 391; for 
seminary .384 f. 

Teaching Office 340 ff. 
Temporalities, of religious 186; 

364; of church 380 ff. 

Terms, various 1 ff. 

Tertiaries 210 
Testimonials 252 f. 

Things, Ecclesiastical 213 ff. 
Time, for baptism 217; for 
confirmation 223; for ordina¬ 
tion 264; for marriage 293 
Title for ordination 260 f.; 377 
Titular feast 306 
Transfer of pastors 459 f- 
Trials, ecclesiastical 408 ff.; 
criminal 426 ff.; matrimonial 
434 ff- 

Tribunals 409 
Trustees 311 f. 

Union of benefices 361 ff. 


United States XIX 

Urgent cases 480 f. 

Utensils, sacred, 335 f. 

Vacancy of see 154ff.; by res¬ 
ignation 454 

Vacation 16 f. 

Vagi, as to marriage 270; as to 
confessions 249 

Vicars Apostolic 64 ff. 

Vicar Capitular 156 ff.; ordina¬ 
tion 252; as to benefices 358 
ff. 

Vicars General 41; rescripts 
108; rights and powers 130 
ff.; ordination 252; consecra¬ 
tion 300; benefices 358 ff. 

Virtues XXIV 

Visit ad limina 26 ff.; of dio¬ 
cese 28 ff.; by metropolitan 
58; of religious institutes 
185; of pious institutes 379 

Voting for administrator 
159 

Votum 431 

Vows 338 f. 

Warning 451 

Will, last 392 f. 

Worship, Divine 326 ff. 

Writings 446 f. 

Writ, Holy 350 





























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